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Full text of "North Carolina Register v.11 no. 6 (6/14/1996)"

% NORTH CAROLINA 



REGISTER 



VOLUME 11 • ISSUE 6 • Pages 315 -404 
June 14, 1996 



IN THIS ISSUE 

Final Decision Letter 

Tax Review Board 

Agriculture 

Environment, Health, and Natural Resources 

General Contractors, Licensing Board for 

Human Resources 

Listed of Rules Codified 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 




This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



s'eSo''^ OFFER. 



A comprehensive Master Index 

is now available for all North Carolina 
administrative law subscribers 



^'fer Index 



LCP/Barclays, the official publisher of the North Carolina Administrative Code, has made 
available a comprehensive Master Index to support the official version of the administrative 
code. The Master Index is not only essential to subscribers of the official NCAC, but to 
anyone involved or interested in administrative law. The Master Index is a finding aid that 
helps provide users easy access to the regulations. It is divided into two sections: 

• Subject Index - The Subject Index is an alphabetical listing that provides both legal 
and lay terms to simplify your searches as they appear in the NCAC. Researchers are able 
to look up names of agencies, legislative acts, and geographic entities. 

• StatUtes-to-Regulations Table - The Statutes-to-Regulations Table contains a 
numerical listing of all statutes referenced in the Administrative Code. For each statute 
number listed, all related North Carolina rules are cited by tide, chapter (or subchapter), 
and rule number. 

The Master Index is regularly priced at $475 for two semi-annual issues. As a special offer, 
Barclays Law Publishing is offering the Master Index to North Carolina Register subscribers 
for only $395, a savings of $80. To place your order, please complete and return the 
attached order form by mail or fax. This offer is good through August 30th. 



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TOTAL 




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NORTH CAROLINA 



IN THIS ISSUE 




Volume 1 1 , Issue 6 
Pages 3 1 5 - 404 



June 14, 1996 



This issue contains documents officially 
filed through May 23, 1996. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 

FAX (919) 733-3462 



Julian Mann, III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Teresa Kilpatrick, Editorial Assistant 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



I. IN ADDITION 

DHR, Medical Assistance 316 

EHNR, NPDES Permits 317 

Tax Review Board 318-322 

Voting Rights Letter 315 

II. RULE-MAKING PROCEEDINGS 
Human Resources 

Department 323 

Social Services Commission 323 

III. PROPOSED RULES 
Agriculture 

Agriculture, Board of 324 - 327 

Environment, Health, and Natural Resources 

Environmental Management Commission 350 - 355 

Health Services, Commission for 357 - 367 

Wildlife Resources Commission 355 - 357 

Human Resources 
Facility Services 328-350 

IV. TEMPORARY RULES 

Environment, Health, and Natural Resources 

Departmental Rules 368-371 

Health Services, Commission for 371 - 372 

Licensing Board 
General Contractors, Licensing Board for 372 - 374 

V. LIST OF RULES CODIFIED 375-377 

VI. RULES REVIEW COMMISSION 378 382 

VII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 383-388 

Text of Selected Decisions 

95 DHR 1 176 389-394 

95 DHR 1 177 389-394 

95 OSP 0905 395-404 

VIII. CUMULATIVE INDEX 1-16 



Digitized by the Internet Archive 

in 2011 with funding from 

University of North Carolina at Chapel Hill 



http://www.archive.org/details/northcarolinareg116nort 



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IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the 
Codifier of Rules for publication. 



U.S. Department of Justice 

Civil Rights Division 

DLP:GS:NT:tlb Voting Section 

DJ 166-012-3 P.O. Box 66128 

96-1227 Washington, D.C. 20035-6128 

May 8, 1996 



Robert W. Oast, Jr., Esq. 

City Attorney 

P.O. Box 7207 

Greenville, North Carolina 27835-7207 

Dear Mr. Oast: 

This refers to seven annexations (Ordinance Nos. 95-128 to 133 and 96-3) and their designation to districts of the 
City of Greenville in Pitt County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting 
Rights Act, 42 U.S.C. 1973c. We received your submission on March 14, 1996. 

The Attorney General does not interpose any objection to the specified change. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the 
enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 



Sincerely, 

Deval L. Patrick 

Assistant Attorney General 

Civil Rights Division 



By: 



Elizabeth Johnson 
Acting Chief, Voting Section 



11:6 NORTH CAROLINA REGISTER June 14, 1996 315 



IN ADDITION 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER SOD - ESTATE RECOVERY 

10 NCAC SOD .0101-.0103, .0201, .0301-.0302, .0401-.0402, .0S01-.0S03 

The following information is a notice of intent to adopt temporary rules. These rules were published as temporary 
rules in 11 NCR 4, 196-199. 

The DHR-Division of Medical Assistance has requested the Rules Review Commission to reconsider its action taken 
on February 15, 1996 to return the above-captioned rules to the Division for failure to prepare a fiscal note in compliance 
with G.S. 150B-21.4(l3). The rules will be considered at the June 20, 1996 RRC meeting. The rules would become effective 
July 1, 1996 if approved at the June 20th meeting. 

If the RRC does not approve the permanent rules to become effective July 1, 1996, it is the Division's intent to file 
temporary rules to continue the current temporary rules in effect until permanent rules become effective. 



316 NORTH CAROLINA REGISTER June 14, 1996 11:6 



IN ADDITION 



STATE OF NORTH CAROLINA 

ENVIRONMENTAL MANAGEMENT COMMISSION 

POST OFFICE BOX 29535 

RALEIGH, NORTH CAROLINA 27626-0535 

PUBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL 
NPDES PERMITS 

Public notice of intent to issue a State National Pollutant Discharge Elimination System (NPDES) General Permit 
for Point Source Discharges of Stormwater associated with the following activities: 

NPDES No. NCG200000 governing the discharge of stormwater associated with activities classified as 
establishments primarily engaged in assembling, breaking up, sorting, and wholesale trade of scrap metal. 

On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General Statutes of 
North Carolina, Public Law 92-500 and other lawful standards and regulations, the North Carolina Environmental 
Management Commission proposes to modify State NPDES General Permits for the discharges as described above. 

INFORMATION: Copies of the draft NPDES General Permit and Fact Sheet concerning the draft Permit is 
available by writing or calling: 

Aisha Lau 

Water Qualify Section 

N.C. Division of Environmental Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

Telephone (919) 733-5083 ext. 578 

Persons wishing to comment upon or object to the proposed determination are invited to submit their comments in 
writing to the above address no later than July 14, 1996 . All comments received prior to that date will be considered in the 
final determination regarding permit issuance. A public meeting may be held where the Director of the Division of 
Environmental Management finds a significant degree of public interest in any proposed permit issuance. 

The draft Permit, Fact Sheet and other information are on file at the Division of Environmental Management, 512 
N. Sahsbury Street, Room 925-C, Archdale Building, Raleigh, North Carolina. They may be inspected during normal office 
hours. Copies of the information file are available upon request and payment of the costs of reproduction. All such 
comments and requests regarding these matters should make reference to the draft Permit Number, NCG200000. 



Date: 5/22/96 



A. Preston Howard, Jr., P.E., Director 
Division of Environmental Management 



11:6 NORTH CAROLINA REGISTER June 14, 1996 317 



IN ADDITION 



STATE OF NORTH CAROLINA 



BEFORE THE 

TAX REVIEW BOARD 



COUNTY OF WAKE 



IN THE MATTER OF: 

The Proposed Assessment of additional sales and use tax 
for the penod of August 1, 1992 through July 30, 1994 
assessed against Abana Pharmaceuticals, Inc. 



ADMINISTRATIVE 
DECISION NUMBER: 313 



THIS MATTER was heard before the Tax Review Board on December 19, 1995 in the City of Raleigh, Wake County, 
North Carolina, in the office of the State Treasurer. It involves the petition for review by Abana Pharmaceuticals, Inc. 
(hereinafter "Taxpayer") from the Final Decision of Michael A. Hannah, Assistant Secretary for Legal and Administrative 
Senices (liereinafter "Assistant Secretar>'") entered on June 15, 1995, sustaining a proposed assessment of use tax for the 
period of August 1, 1992 through July 30, 1994. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with duly appointed member, Noel L. Allen, 
Attorney at Law participating. Hugh A. Wells, Chairman Utilities Commission was not present at the hearing. 

The Taxpayer was represented at the hearing by Perry N. Cole, Executive Vice President; Marilyn R. Mudge, Assistant 
Attorney General, appeared on behalf of the Department of Revenue. 

After the hearing, the Board members present took the matter under advisement pursuant to G.S. §105-241. 2(bl). On 
February 23, 1996, a post hearing brief was filed with Board on behalf of the Taxpayer. On March 26, 1996, a post hearing 
brief was filed with Board on behalf of the Secretary of Revenue. On April 23, 1996, the Board reviewed the Petition, 
Briefs and record of the matter in the proceeding before the Assistant Secretary. 

HNDINGS OF FACT 

THE TAX REVIEW BOARD, having reviewed the Petition, Briefs and record filed in this matter, makes the following 
Findings of Fact: 

1. Taxpayer is engaged in the business of manufacturing and selling prescription drugs. 

2. Taxpayer's salespeople distribute free samples of the prescription drugs to North Carolina physicians to give to 
their patients. 

3. The prescription drugs that are distributed by free samples to the physicians are prescribed by them to their 
patients. 

CONCLUSIONS OF LAW 

After reviewing the record, the Petition, Briefs and considering the foregoing findings of fact, the Tax Review Board 
concludes as a matter of Law: 

1. The statute that sets forth exemptions from the state sales and use taxes is N.C.G.S. §105-164.13. 

2. Under that statute, "the sale at retail, the use, storage or consumption in this State of the following tangible 
personal property is specifically exempted from the tax imposed by this Article": 

(13) "Medicines sold on prescription of physicians, dentist or veterinarians; insulin whether or not sold on prescription." 

3. The free samples of the prescription drugs distributed by Taxpayer's salespeople to the North Carolina physicians 
are exempt from use tax under N.C.G.S. §105-164.13(13). 



318 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



IN ADDITION 



DECISION 

IT APPEARING TO THE BOARD, based upon the foregoing findings of fact and conclusions of law, that the drug 
samples distributed to North Carolina physicians are exempt from use tax pursuant to N.C.G.S. §105-164.13(13). 

IT IS THEREFORE ORDERED, that the Final Decision of the Assistant Secretary is REVERSED. 

Entered this the 17th day of May, 1996. 

TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 



Hugh A. Wells, Chairman 
Utilities Commission 



Noel L. Allen, Appointed Member 



11:6 NORTH CAROLINA REGISTER June 14, 1996 319 



IN ADDITION 



STATE OF NORTH CAROLINA 

COUNTY OF WAKE 

IN THE MATTER OF: 

The Proposed Assessment of additional sales and use tax 
for the period of June 1, 1991 through April 30, 1994 
assessed against Heede Southeast, Inc. 



BEFORE THE 

TAX REVIEW BOARD 



ADMINISTRATIVE 
DECISION NUMBER: 314 



THIS MATTER was heard before the Tax Review Board on February 20, 1996 in the City of Raleigh, Wake County, 
North Carolina, in the office of the State Treasurer. It involves the petition for administrative review filed by Heede 
Southeast, Inc. (hereinafter "Taxpayer") from the Final Decision of Michael A. Hannah, Assistant Secretary for Legal and 
Administrative Services (hereinafter "Assistant Secretary") entered on July 20, 1995 sustaining a proposed assessment of 
additional sales and use tax for the period of June 1, 1991 through April 30, 1994. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with duly appointed member, Noel L. AJlen, 
Attorney at Law participating. Hugh A. Wells, Chairman Utilities Commission was not present at the hearing. 

The Taxpayer was represented at the hearing by V. A. Anderson, Jr., Attorney at Law. Perry Safran, Attorney at Law 
and Mr. Ira Schmidt also appeared on behalf of the Taxpayer. Marilyn R. Mudge, Assistant Attorney General, appeared 
on behalf of the Department of Revenue. 

After the hearing, the Board members present took the matter under advisement pursuant to G.S. §105-241. 2(bl). On 
April 23, 1996, the Board reviewed the Petition, Brief and record of the matter in the proceeding before the Assistant 
Secretary. 

THE BOARD HAVING REVIEWED THE PETmON AND RECORD MADE IN THE PROCEEDING AND HAVING 
CAREFULLY CONSIDERED THE MATTERS OF RECORD RENDERED THE FOLLOWING DECISION: The Assistant 
Secretary erred in finding that the "Equipment Rental Agreement Continued" contains terms that add to or conflict with the 
"Equipment Rental Agreement" thereby changing some of the terms of the rental agreement. It is the opinion of the Board 
that while the "Equipment Rental Agreement Continued" is not a model of good contract draftsmanship, and while it is not 
artfully positioned with respect to the rental contract, there existed two distinct and separate contracts. TTierefore, the 
transportation, erection and dismantling charges set forth in the "Equipment Rental Agreement Continued" are separate and 
apart from the "Equipment Rental Agreement" and rental charge, and thus are not subject to sales and use tax. 

AND IT APPEARING TO THE BOARD: that the findings of fact made by the Assistant Secretary were not supported 
by the evidence in the record; that the conclusions of law made by the Assistant Secretary were not supported by the findings 
of fact, and that the decision of the Assistant Secretary was not supported by the conclusions of law; 

IT IS THEREFORE ORDERED, that the Final Decision of the Assistant Secretaiy is REVERSED. 

Entered this the I7th day of May, 1996. 

TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Hugh A. Wells, Chairman 
Utilities Commission 



Noel L. Allen, Appointed Member 



320 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



IN ADDITION 



STATE OF NORTH CAROLINA BEFORE THE 

TAX REVIEW BOARD 

COUNTY OF WAKE 

IN THE MATTER OF: 

The Proposed ControUed Substance Excise tax of ADMINlSTRATrVE 

July 11, 1991 against Ted AUen GiUey and Myrtle DECISION NUMBER: 315 

Royal Gilley 

THIS MATTER was heard before the Tax Review Board (hereinafter "Board") on April 23, 1996, in the office of the State 
Treasurer, in the City of Raleigh, Wake County, North Carolina. It involved a petition for administrative review filed by 
Ted Allen Gilley and Myrtle Royal Gilley (hereinafter "Taxpayers") from the Final Decision of Michael A. Hannah, 
Assistant Secretary for Legal and Administrative Services for the Department of Revenue (hereinafter "Assistant Secretary") 
entered on September 13, 1995, sustaining a proposed controlled substance excise tax assessment of July 11, 1991. 

Chairman Harlan E. Boyles presided over the hearing with duly appointed member, Noel L. Allen, Attorney at Law. 

The Taxpayers were not present or represented at the hearing. Christopher E. Allen, Assistant Attorney General, appeared 
on behalf of the Department of Revenue. 

Pursuant to N.C.G.S. §105-241.2, the Board conducted the hearing upon review of the Petition and record made in the 
proceeding before the Assistant Secretary. N.C.G.S. §105-241.2 does not grant this administrative Board the authority or 
jurisdiction to rule on the constitutionahty of a statute. Great Am. Ins. Co. v. Gold, 254 N.C. 168, 118 S.E.ld. 792 (1961). 

AND IT APPEARING TO THE BOARD: that the findings of fact made by the Assistant Secretary were fully supported 
by competent evidence in the record, that the conclusions of law made by the Assistant Secretary were fully supported by 
the findings of fact, and that the decision by the Assistant Secretary was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Assistant Secretary is CONFIRMED in every respect. 

Entered this the 17th day of May, 1996. 

TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Hugh A. Wells 

Chairman, Utilities Commission 



Noel L. Allen 



11:6 NORTH CAROLINA REGISTER June 14, 1996 321 



IN ADDITION 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 

IN THE MATTER OF: 

The Proposed Assessment of additional Income Tax for 
the taxable years of 1989, 1990, 1991 and 1992 agamst 
H. L. and Faye G. Gillespie 



BEFORE THE 

TAX REVIEW BOARD 



ADMINISTRATIVE 
DECISION NUMBER: 316 



THIS MATTER was heard before the Tax Review Board (hereinafter "Board") on April 23, 1996, in the office of the State 
Treasurer in the City of Raleigh, Wake County, North Carolina. It involved the petition for administrative review filed by 
H. L. and Faye G. Gillespie (hereinafter "Taxpayers") from the Final Decision of Michael A. Hannah, Assistant Secretary 
for Legal and Administrative Services for the Department of Revenue (hereinafter "Assistant Secretary") entered on June 
15, 1995. In that Final Decision, the Assistant Secretary found that the Taxpayers' liability for 1992 had been overpaid and 
applied that overpayment to eliminate the Taxpayers' 1991 liability and reduce the 1989 liability. In the Petition, the 
Taxpayers did not dispute the Assistant Secretary's findings with respect to the 1991 and 1992 tax years. The Petition for 
administrative review concerned only the proposed assessment of additional individual income tax for the 1989 and 1990 tax 
years. 

Chairman Harlan E. Boyles presided over the hearing with duly appointed member, Noel L. Allen, Attorney at Law. 



The Taxpayer was represented at the hearing by Craig B. 
appeared on behalf of the Department of Revenue. 



Wheaton; Marilyn R. Mudge, Assistant Attorney General, 



The purpose of this Board is to provide administrative review to a Taxpayer from the Secretary of Revenue's decision 
sustaining the assessment of tax or additional tax pursuant to North Carolina Revenue Laws. The Board after a review of 
the factual situation and the application of the statute to that situation, renders its decision. N.C.G.S. §105-241.2 provides 
that the Board's decision shall confirm, modify, reverse, reduce or increase the assessment or decision of the Secretary. 

THE BOARD HAVING REVIEWED THE PETITION AND RECORD MADE IN THE PROCEEDING AND HAVING 
CAREFULLY CONSIDERED THE MATTERS OF RECORD AND THE ARGUMENTS PRESENTED RENDERED THE 
FOLLOWING DECISION: that the findings of fact made by the Assistant Secretary were fully supported by competent 
evidence in the record; that the conclusions of law made by the Assistant Secretary were fully supported by the findings of 
fact; and that the decision by the Assistant Secretary sustaining the tax assessment was fully supported by the conclusions 
of law; 

IT IS THEREFORE ORDERED that the Final Decision of the Assistant Secretary is CONFIRMED in every respect. 

Entered this the 17th day of May, 1996. 

TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Hugh A. Wells 

Chairman, Utilities Commission 



Noel L. Allen 



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11:6 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The 
agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed 
text of a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the 
Register under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as rule- 
making proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory 
reference: G.S. 150B-21.2. 



TITLE 10 - DEPARTME>rr OF 
HUMAN RESOURCES 



10 NCAC 41 P .0013. Other rules may be proposed in the 
course of the rule-making process. 



CHAPTER 41 - CHILDREN'S SERVICES 



Authority for the rule-making: G.S. 48-2-504; 48-3-504 



A Jotice of Rule-making Proceedings is hereby given by 
J. 1 the Social Services Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in 
the Register the text of the rule(s) it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 41 P .0002, .0005, .0006, .0008, .0009, .0010, 
.0011, and .0012. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 48 

Statement of the Subject Matter: 10 NCAC 41P contains 
rules designed to implement the adoption laws contained in 
Chapter 48 of the North Carolina General Statutes. 

Reason for Proposed Action: The 1995 General Assembly 
found it in the public interest to clarify the judicial process 
for adoptions, to promote the integrity and finality of 
adoptions, and to encourage prompt, conclusive dispositions 
of adoption proceedings. Towards this end, SB 159 was 
ratified. This action included rewriting many of the adop- 
tion laws contained in G. S. 48. The amendments proposed 
to 10 NCAC 41 P will provide for implementation of those 
clranges. 



Statement of the Subject Matter: The proposed rule 
governs the establishment of fees to be charged for prepara- 
tion of preplacement assessments and reports to the court in 
adoption cases. 

Reason for Proposed Action: The 1995 General Assembly 
enacted G.S. 48-2-504 which authorized an agency that 
prepares a report to the court in an adoption case to charge 
the petitioner a fee for preparing and writing the report. 
Also established into law was G.S. 48-3-304 which autho- 
rizes an agency that prepares a preplacement assessment in 
an adoption case to charge a fee for the preparation. The 
purpose of this rule Is to establish guidelines for implementa- 
tion of these statutes. 

Comment Procedures: Anyone wishing to comment should 
contact Shamese Ransome, Special Assistant to the Director, 
N. C. Division of Social Services, 325 N. Salisbury St. , 
Raleigh. NC 27603, 919/733-3055. 



Comment Procedures: Anyone wishing to comment should 
contact Shamese Ransome, Special Assistant to the Director, 
N. C. Division of Social Serx'ices, 325 N. Salisbury St. , 
Raleigh, NC 27603, 919/733-3055. 

\ Jotice of Rule-making Proceedings is hereby given by 
L y the Department of Human Resources in accordance with 
G.S. 150B-21.2. The agency sliall subsequently publish in 
the Register the text of the rule(s) it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 



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323 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency 
published a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 
30 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. 
The required comment period is 60 days for a rule tliat has a substantial economic impact of at least five million 
dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Agriculture intends to 
amend rules cited as 2 NCAC 9C .0701, .0702; 48A .0206, 
.0211, .0214, .1103, .1110; 48B .0112, .0114, .0119, 
.0120; 52B .0201; and repeal 2 NCAC 9C .0704. Notice 
of Rule-making Proceedings was given in the NC Register on 
March 15, 1996. 

Proposed Effective Date: March 2, 1997 

Public Hearing: A public hearing was held on these 
proposed rules on April 3, 1996, pursuant to a Notice of 
Rule-making Proceedings published at 10 NCR 24, 3056, 
March 15, 1996. 

Reason for Proposed Action: 2 NCAC 9C .0701, .0702, 
. 0704 - To remove portions of rule which have been pre- 
empted by federal rules. 2 NCAC 48A .0206, .0211, .0214 
- To provide for interstate movement of bees through North 
Carolina without a permit under certain conditions; to make 
compliance with laws and rules a condition of compliance 
agreements; and to clarify that bee disorders as well as 
diseases are grounds for regulatory action. 2 NCAC 48A 
. 1103, .1110 - Since the purpose of the rule is to prevent the 
spread of plant diseases, a 75-mile exemption will serve the 
same purpose and will be simpler and more efficient to 
enforce than an exemption based upon the number of sales. 
2 NCAC48B .0112, .0114, .0119, .0120 - To clarify, make 
corrections, and delete obsolete or unnecessary provisions. 
2 NCAC 52B .0201 - Often, it is not feasible to forward a 
copy of the health certificate within ten days. Thirty days is 
more reasonable and will still meet the needs of our animal 
health programs. 

Comment Procedures: Comments may be submitted in 
writing no later than July 15, 1996, to David S. McLeod, 
Secretary, North Carolina Board of Agriculture, P.O. Box 
27647, Raleigh, NC 27611. 



SUBCHAPTER 9C - CURRENT GOOD 

MANUFACTURING PRACTICES 

FOR SPECIFIC FOOD INDUSTRIES 

SECTION .0700 - BOTTLED WATER 

.0701 SCOPE 

(ft) TTie source approval requirements of this Section 
apply to bottled water sources located within the state. 
Bottled water from sources located outside the state must 
comply with the source approval requirements of Title 21, 
Code of Federal Regulations, Part 129, which is adopted by 
reference in 2 NCAC 9B .0016(0(15). 

fb^ — Th e lab e ling roquiromonto of thio S e ction apply to 
bottled v ^ 'ator offorod for salo in tho stnto. 

Authority G.S. 106-139. 

.0702 DEFINrriONS 

For the purposes of this Section: 

(1) "Approved source" when used in reference to a 
plant's product or operations water, means a 
source of water and the water therefrom, whether 
it be from a spring, well, municipal water supply, 
or any other source that has been approved by the 
Department of Agriculture's designated represen- 
tative, the Department of Environment, Health, 
and Natural Resources, Environmental Health 
Division, Public Water Supply Section in accor- 
dance with this Section; 

(2) "Spring" means a natural orifice in the earth's 
surface through which water freely flows without 
the aid of mechanical means; 

(3) "Well" means a hole that is cored, bored, drilled, 
jetted, dug or otherwise constructed so as to tap 
an aquifer through which water is derived by 
mechanical means. If th e wat e r ris es to th e 
surfac e on itc own without aid of mechanical 
mean s duo to hydro s tatic pressure, the well would 
bo an artesian well. 



Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. Vtese Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 9 - FOOD AND DRUG PROTECTION 
DIVISION 



Authority G.S. 106-139. 

.0704 LABELING 

Bottl e d wat e r which us e s tho word "spring" or "w e ll" 
in it s lab e ling to d e scrib e tho product, oth e r than in a 
trad e nam e or company nam e , s hall b e d e em e d to b e 
miebrand e d unl e ss th e sourc e of s uch wat e r conforms to 
th e d e finitions of those torrn s in Rule .0702 of this 



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PROPOSED RULES 



S oction. 



Statutory Authority G.S. 106-139. 

CHAPTER 48 - PLANT INDUSTRY 

SUBCHAPTER 48A - PLANT PROTECTION 

SECTION .0200 - HONEY AND BEE INDUSTRY 

.0206 THE TRANSPORTATION OF BEES 

The transportation or importation into North Carolina 
from any other state or country of bees of the superfamily 
apoidea in any stage of development, the causal agents of 
their diseases or disorders, their pests, their products, nests 
or hives, and associated equipment are prohibited except 
under the following conditions: 

(1) All bees of the superfamily apoidea except apis 
mellifera and cross bred strains of apis mellifera 
with other species of apis that are naturalized in 
the United States shall be allowed entry into 
North Carolina only by scientific permit. Proce- 
dures for obtaining scientific permit are: 

(a) An application for a permit to move regu- 
lated articles shall be obtained from: 

State Apiarist 

Plant Industry Division 

North Carolina Department of 

Agriculture 

Post Office Box 27647 

Raleigh, North Carolina 27611 

This application shall be returned to the 
State Apiarist for processing; 

(b) Decisions on acceptance or rejection of 
applications for movement of regulated 
articles for scientific purposes are based on 
the following criteria: 

(i) pest or disease risk hazard; 
(ii) safeguards against spread which can 
be applied; 

amount of material involved; 
biological conditions in the area in 
which the regulated article is to be 
moved; 

method of packaging and method of 
shipment to be employed; 
use for which the regulated articles 
is to be applied. 

(2) Bees of the species, apis mellifera and strains of 
apis mellifera cross bred with other species of 
apis that are naturalized in the United States 
herein referred to as bees and their equipment and 
products may be allowed entry into North Caro- 
lina under the following conditions: 
(a) Live adult bees in cages, without combs or 

foundation provisioned with "candy" or 
"syrup" made from sugar and boiled honey 



(iii) 
(iv) 



(V) 



(vi) 



{assessing a valid certificate of inspection 
will be admitted when not from an area 
under quarantine; 

(b) Bees on combs or foundation, nuclei, used 
hives, used combs and other used apiary 
equipment of any kind are prohibited ex- 
cept by permit issued according to the 
provisions of the rules in this Section; 

(c) New or unused apiary equipment and prod- 
ucts packed for nonbee consumption may 
be transported into North Carolina without 
restriction; 

(d) Pollen shipped for bee food may be trans- 
ported into North Carolina when free of 
bee disease; 

(e) Nuclei of commercial beekeepers or a 
beekeeper who is not regularly in the busi- 
ness of raising queens, package bees or 
nuclei for sale are prohibited except by 
permit issued according to the provisions of 
the rules in this Section; 

(f) Nuclei of queen breeders, package bee 
producers, or nuclei producers must be 
accompanied by a valid certificate of apiary 
inspection issued by the proper official of 
the state of origin and marked with the 
North Carolina compliance agreement 
number. A compliance agreement may be 
made between the State Apiarist and those 
rearing bees in other states for sale as 
nuclei providing the shipper agrees to the 
conditions in the compliance agreement; 

(g) The transportation into North Carolina 
from any other state or country of bees on 
comb, used hive bodies, frames, combs and 
other apiary equipment may be allowed into 
North Carolina when each shipment is 
accompanied by a valid permit issued by 
the State Apiarist. Any colony or colonies 
of bees or used apiary equipment of any 
kind found to be moving or to have been 
moved into North Carolina in violation of 
the requirements of this Section shall be 
subject to seizure, destruction, or such 
other disposition as shall be determined by 
the State Apiarist, or other authorized 
inspector, without compensation to the 
owner. 

(3) Bees may be transported through North Carolina 
in interstate commerce only under the following 
conditions: 



^ 



(a) Hives must be securely covered at all 
times; 

£b) Transporting vehicles must keep motors 
running at aU times unless refueling, or 
unless the bees are enclosed in a refriger- 
ated containment vehicle that maintains the 



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325 



PROPOSED RULES 



bees at a constant temperature below 45 
degrees F.; 

(c) Transporting vehicles must remain within 
one mile of the interstate highway; and 

(d) The vehicle operator or other responsible 
person must immediately report to the 
North Carolina Department of Agriculture 
any accidental or intentional release of 
bees. 

(3) (4} Bees may be transported freely within North 
Carolina except as restricted by quarantine, 
clean-up areas, or other rules herein. 

Authority G.S. 106-634 through 106-644. 

.0211 COMPLIANCE AGREEMENT 

A compliance agreement may be made between the State 
Apiarist and those rearing bees for sale as nucl e i providing 
the shipper agrees to: 

(1) Notify the State Apiarist of nuclei bees shipped 
into or within North Carolina, the date shipped, 
and destination; 

(2) Not use chemotherapy to mask the presence of 
disease; 

(3) Not exchange used frames in the operation: 

(4) Have all of his bees inspected twice a year and 
send the State Apiarist copies of health certificates 
issued, issued; 

(5) Meet all other conditions stipulated by the State 
Apiarist and provided for by regulations. 

If conditions within the state of origin warrant or viola- 
tions of the compliance agreement or other health standards 
occur, the State Apiarist may discontinue the issuance of 
compliance agreements and revoke any outstanding agree- 
ments. The compliance agreement expires December 3 1 of 
each year unless revoked by the State Apiarist prior to that 
date. 

Authority G.S. 106-634 through 106-644. 

.0214 INFESTED APIARY MATERIAL LIABLE 
TO DESTRUCTION 

(a) Anyone possessing bees, apiary products, or equip- 
ment that are infested or infected with infectious and 
contagious bee diseases or disorders must disinfect or 
sterilize such bees, apian.' products, or equipment in such a 
manner as to prevent propagation or spread hazard of the 
disease. 

(b) If bees, equipment, or apiary products that are 
infested or infected with infectious and contagious bee 
diseases or disorders are not satisfactorily disinfected or 
sterilized the inspector may take measures to eradicate such 
bee diseases or disorders at the expense of the beekeeper. 

(c) If all other satisfactory sterilization treatments or 
fumigations are not available or acceptable to the beekeeper, 
bees, apiary products, or equipment that are infested with 
contagious and infectious bee diseases or disorders shall be 



destroyed by the State Apiarist or inspector without compen- 
sation to the beekeeper. 

Authority G.S. 106-634 through 106-644. 

SECTION .1100 - TOBACCO PLANT 
CERTIFICATION 

. 1 103 UNLAWFUL USE OR DISTRIBUTION OF 
PLANTS 

(a) No person, firm, company, partnership or corporation 
(hereinafter "person") shall pack, transport, sell or offer for 
sale, ship or bring into or plant in this state any tobacco 
plants produced out of state unless such plants are certified 
tobacco plants and are imported under the tobacco plant 
import permit. 

(b) Only certified tobacco plants shall be sold or offered 
for sale in North Carolina, except that a person may moko 
no more than throe salos sell or donations donate ef^-a 
combination th e r e of of uncertified tobacco plants produced 
in North Carolina to residents of this state in a oingl o 
calendar year, provided the planting location is within 75 
miles from where the plants were produced. 

(c) A North Carolina resident, including any firm, 
company, partnership or corporation having its principal 
place of business in this state, engaged in the production of 
tobacco on land located both in North Carolina and a 
contiguous state, may apply to the Plant Pest Administrator 
for an exemption from the certification and importation 
requirements of this Section. Exemptions may be granted 
if each of the following conditions exist: 

(1) the land is used for tobacco production; 

(2) the land lies both in this state and a contiguous 
slate; and 

(3) the land does not extend more than 30 miles from 
the North Carolina border. 

Authority G.S. 106-65.45; 106-65.46; 106-284.18; 106-420. 

.1110 STANDARDS 

(a) All tobacco plants shall meet the requirements of all 
applicable state and federal plant pest quarantines. 

(b) All certified tobacco plants offered for sale or 
imported under permit into North Carolina shall meet the 
following requirements: 

(1) The soil in the beds in which the plants are to be 
grown shall be fumigated under plastic cover with 
methyl bromide (minimum 60 percent in formula- 
tion at the rate indicated on the label for tobacco 
transplant beds). 

(2) All plants shall be field inspected a maximum of 
five days prior to their being offered for sale in 
North Carolina. 

(3) All plants shall be found apparently free from all 
injurious plant pests including but not limited to 
insects, diseases and nematodes. 

(4) Special emphasis shall be made to ensure that the 



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June 14, 1996 



11:6 



PROPOSED RULES 



plants are apparently free of blue mold, target 
spot, black shank, Granville wilt, Fusarium wilt, 
virus diseases and root knot nematodes. 
(5) To aid in ensuring apparent freedom from injuri- 
ous plant p>ests, the grower shall make full use of 
all compatible and approved pest control practices 
during the growing of the transplants. 

Authority G.S. 106-65.45; 106-65.46; 106-284.18; 106-420. 

SUBCHAPTER 48B - FERTILIZER 

SECTION .0100 - FERTILIZER STANDARDS 

.0112 REPORT REQUIRED AND METHOD OF 
REPORTING 

Each manufacturer or firm having fertilizer registered in 
North Carolina shall report to the Commissioner of Agricul- 
ture the tonnage of each grade of fertilizer shipped to each 
destination in the state. This information may be reported 
by either of the following methods: 

(1) by sending to the Commissioner a copy of the 
invoice or order minus price quotation, on each 
shipment of fertilizer in or into this state, within 
30 days after shipment is made; 

(2) by submitting a monthly by grade by count)' 
summary; such summary to be submitted by the 
15th of the month following summary period. 

Authority G.S. 106-673. 

.0114 SPECIALTY FERTILIZER-PESTICIDE 
MIXTURES 

Any specialty fertilizer containing a minimum of 20 
percent plant food may be sold in admixtur e a mixture with 
pesticides under the following conditions: 

(1) Each formulation shall be registered as provided 
in 2 NCAC 48B .0113; 

(2) Each formulation shall be of such pesticide and 
fertilizer combination as to be in agreement with 
sound practice and application in these respective 
fields; 

(3) The products shall be labeled and intended for use 
only as specialty fertilizer mixtures; i.e., for 
noncommercial crop use; 

(4) The formulations, claims and labeling are subject 
to approval by the Commissioner of Agriculture 
or his duly designated agent; 

(5) Products shall be offered for sale in a maximum 
bag size of 80 pounds, and sizes of the regis- 
trant's choice when the amount is less than 80 
pounds. 

Authority G.S. 106-673. 

.0119 DATA 

Data to substantiate claims are requested when questions 



arise regarding the ability of a product to perform as 
claimed. Data shall be developed from tests conducted 
under conditions identical to or closely related to those 
present in North Carolina. If such data are not available, 
registration shall bo is refused. 

Authority G.S. 106-673. 

.0120 REFUSAL OF REGISTRATION 

Registration is refused on fertilizer products when the 
Commissioner finds that the product will not supply d e fi 
ciont sufficient needs of a plant when used according to 
directions. 

Authority G.S. 106-673. 

SUBCHAPTER 52B - ANIMAL DISEASE 

SECTION .0200 - ADMISSION OF LIVESTOCK TO 
NORTH CAROLINA 

.0201 HEALTH REGULATIONS IN GENERAL 

(a) No animal, including poultry or birds of any species, 
that is affected with, or recently exposed to, any infectious, 
contagious, or communicable disease, or which originates 
from a quarantine area, shall be transported or in any 
manner moved into the state until written permission for 
such importation has been obtained from: 

State Veterinarian of North Carolina 
North Carolina Department of Agriculture 
Raleigh, North Carolina 27611 
Those diseased or exposed animals which are approved by 
the Animal and Plant Health Inspection Service, Veterinary 
Services, United States Department of Agriculture for 
interstate shipment for immediate slaughter are exempt from 
this provision. 

(b) All livestock (including the American buffalo or bison 
which for the purpose of this Section shall be considered as 
beef cattle) transported or otherwise moved into the state 
shall be accompanied by an official health certificate, and 
permit when required, which shall be attached to the waybill 
or shall be in the possession of the driver of the vehicle or 
person in charge of the livestock. 

(c) A copy of the health certificate approved by the chief 
livestock sanitary official of the state of origin shall be 
forwarded within te» 30 days of issuance to: 

State Veterinarian 

472 Agriculture Building 

Post Office Box 26026 

Raleigh, North Carolina 27611 

(d) Livestock entering North Carolina without a proper 
health certificate, and permit when required, shall be 
quarantined and held at the owner's risk and expense until 
released by the State Veterinarian. 

Authority G.S. 106-307.4; 106-307.5; 106-317; 106-540. 



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327 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2(c) that the Division of Facility Services intends to amend rules 
cited as 10 NCAC 3R .3001. .3020, .3030 .3032, .3040 and .3050. Notice of Rule-making Proceedings was given in 
10:23 NCR 2956 on March 1, 1996. 

Proposed Effective Date: January 30, 1997 

All Public Hearings will be conducted at 1:30 - 2:30 p.m. on the following dates and locations: 



July 8, 1996 

(Monday) 

Asheville 

MAHEC 

501 Biltmore Avenue 

Classroom Room #7 

Asheville, NC 28801-4686 

July 11, 1996 

(Thursday) 

Greensboro 

Council of Governments 

Koger Office Center 

(near Howard Johnson 's) 

2216 W. Meadowview Road 

Suite 201 , Wilmington Building 

(2nd Floor Conference Room) 

Greensboro, NC 27407-3480 

July 11, 1996 

(Thursday) 

Greenville 

The Willis Building 

East Carolina University 

300 East First Street 

Greenville, NC 27858-4356 



July 12, 1996 

(Friday) 

Charlotte 

Rankin Education Center - Auditorium 

Carolinas Medical Center 

1200 Blythe Boulevard 

Charlotte, NC 

July 12, 1996 

(Friday) 

Wilmington 

Coastal AHEC 

New Hanover Regional Med. Ctr. 

Auditorium — Ground Floor 

2131 S. 17th Street 

Wilmington, NC 

July 15, 1996 

(Monday) 

Raleigh 

Division of Facility Services 

Conference Room ft201 

701 Barbour Drive 

Raleigh, NC 27603 



For additional information please call the Medical Facilities Planning Section at 919-733-4130. 

Reason for Proposed Action: To amend rules to reflect changes in need determinations and policies applicable to health 
senice facilities which also will appear in the 1997 State Medical Facilities Plan. 

Comment Procedures: Comments, statements, data and other information may be submitted in writing to Jackie Sheppard, 
Rule-making Coordinator, P.O. Box 29530, Raleigh, NC 27626-0530 no later than August 13, 1996. 

Fiscal Note: These Rules affect the expenditure or distribution of State funds subject to the Elxecutive Budget Act, Article 
1 of Chapter 143. These Rules affect the expenditures or revenues of local government funds. These Rules do have a 
substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS 

SECTION .3000 - STATE MEDICAL FACILITIES PLAN 

.3001 CERTIFICATE OF NEED REVIEW CATEGORIES 



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11:6 



PROPOSED RULES 



The agency has established nine categories of facilities and services for certificate of need review and will determine the 
appropriate review category or categories for all applications submitted pursuant to 10 NCAC 3R .0304. For proposals 
which include more than one category, the agency may require the applicant to submit separate applications. If it is not 
practical to submit separate applications, the agency will determine in which category the application will be reviewed. The 
review of an application for a certificate of need will commence in the next review schedule after the application has been 
determined to be complete. The nine categories of facilities and services are: 

(1) Category A. Proposals for acute health service facilities, except those proposals included In Categories B through 
H, including but not limited to the following types of projects: renovation, construction, equipment, and acute care 
services. 

(2) Category B. Proposals for long-term nursing facility beds and new continuing care facilities applying for 
exemption under 10 NCAC 3R .3050(b)(2). 

(3) Category C. Proposals for new psychiatric facilities; psychiatric beds in existing health care facilities; new 
intermediate care facilities for the mentally retarded (ICF/MR) and ICF/MR beds in existing health care facilities; 
new substance abuse and chemical dependency facilities; substance abuse and chemical dependency beds in existing 
health care facilities. 

(4) Category D. Proposals for new dialysis stations in response to the "county need" or "facility need" 
methodologies; and relocations of existing dialysis stations to another county. 

(5) Category E. Proposals for new or expanded inpatient rehabilitation facilities and inpatient rehabilitation beds in 
other health care facilities; and new or expanded ambulatory surgical facilities except those proposals included in 
Category H. 

Category P. Proposals for new home health agencies or offices, new hospice home care programs, new hospice 
inpatient beds, and new hospice residential beds. 
Category G. Proposals for converting hospital beds to nursing care under 10 NCAC 3R .3050(b)(1); and for n e w 



(6) 
(7) 



dialysis s tations as the result of "adjusted need determinations" for Daro and Cartorot counties, demonstration 
projects; and relocations of nursing facility beds under 10 NCAC 3R .3050(b)(7). 

(8) Category H. Proposals for bone marrow transplantation services, bum intensive care services, neonatal intensive 
care services, open heart surgery services, solid organ transplantation services, air ambulance equipment, cardiac 
angioplasty equipment, cardiac catheterization equipment, heart-lung bypass machines, gamma knives, lithotriptors, 
magnetic resonance imaging scanners, positron emission tomography scanners, and major medical equipment as 
defined in G.S. 131E-176(14f), diagnostic centers as defined in G.S. 131E-176(7a), and oncology treatment 
centers as defined in G.S. 131E-176(18a). 

(9) Category I. Proposals involving cost overruns; expansions of existing continuing care facilities which are licensed 
by the Department of Insurance at the date the application is filed and are applying under exemptions from need 
determinations in 10 NCAC 3R .3030; relocations within the same county of existing health service facilities, beds 
or dialysis stations which do not involve an increase in the number of health service facility beds or stations; 
reallocation of beds or stations; services; Category A proposals submitted by Academic Medical Center Teaching 
Hospitals designated prior to January 1, 1990; proposals submitted pursuant to 10 NCAC 3R .3050(a)(3) by 
Academic Medical Center Teaching Hospitals designated prior to January 1, 1990; and any other proposal not 
included in Categories A through H. 

Authority G.S. 131E-176(25); 131E-177(1); 131E-I83(h). 

.3020 CERTIFICATE OF NEED REVIEW SCHEDULE 

The agency has established the following schedule for review of categories and subcategories of facilities and services in 
499^ 1997. 

(1) Category B. Subcategory Lxing-Term Nursing Facilities. 



County 



CON Beginning 
Review Date 



Al e xand e r 
H e nd e r s on 
MoDowoll 
Rutherford 



April 1. 1996 
April 1, 1996 
August 1, 1096 
March 1, 1996 



11:6 



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329 



PROPOSED RULES 



County 



CON Beginning 
Review Date 



Watauga 



Alamonoo 



Wake 
Brunswick 



Cumborland 



Now Honovor 

P e nd e r 

B e aufort 

Onalow 

Pitt 



Maroh 1, 1996 
Augu s t 1, 1 96 
Scptombor 1, 1996 
May 1. 1996 
D e c e mb e r 1, 1996 
Doccmbcr 1, 1996 
S e ptember 1, 19 9 6 
May 1, 1996 
D e cember 1. 1996 
March 1, 1996 
May 1, 1996 



County 


CON Beginning 




Review Date 


Burke 


February 1, 1997 


Cherokee 


October 1, 1997 


Jackson 


October 1, 1997 


Macon 


October 1, 1997 


Yancev 


February 1, 1997 


Caswell 


August 1, 1997 


Davidson 


October 1, 1997 


Surry 


August 1, 1997 


Yadkin 


August 1, 1997 


Iredell 


April 1, 1997 


Lincoln 


April 1, 1997 


Union 


August 1, 1997 


Johnston 


March 1, 1997 


Wake 


December 1, 1997 


Hoke 


March 1, 1997 


Moore 


Mav 1, 1997 


Currituck 


December 1, 1997 


Greene 


September 1, 1997 



330 



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11:6 



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County 


CON Beginning 
Review Date 


Martin 
Nash 


December 1, 1997 
September 1, 1997 



(2) Category C. Subcategory Detox-Only Beds. 

-(a) Subcat e gory' Int e rmediate Car e Faciliti e s for M e ntally R e tard e d. 



Mental Hcolth Planning Ar e as (Constitu e nt Counti e s) 



CON B e ginning 
Roviovv Date 



-3 (Buncomb e , Madison, Mitchell, Yanoey) 

-^ (Alleghany, Ash e , Av e ry, Watauga, Wilk e s) 

-§ (Caldwell, Burlc e , Al e xand e r, McDowell) 

24- (Davidson) 

■W (M e ckl e nburg) 

43 (Stanl e y, Cabarrus, Union) 

+8 (Orang e , P e rson, Chatham) 

3# (Crav e n, Jones, Pamlico, Carteret) 



April 1, 1996 
D e c e mb e r 1, 1996 
D e cemb e r 1, 1996 
Octob e r 1, 1996 
April 1, 1996 
Octob e r 1, 1996 
Nov e mb e r 1, 1996 
July 1, 1996 



■(b) Subcat e gory D e tox Only Beds. 



Mental Health Planning Areas (Constituent Counties) 



CON Beginning 
Review Date 



-1- (Jackson, Haywood, Macon, Ch e rok e e, Clay, Graham, Swain) 

-4 (Transylvania, Hend e rson) 

-§ (Caldw e ll, Burk e , Al e xand e r, McDow e ll) 

-6 (Rutherford, Polk) 

-8 (Ga s ton, Lincoln) 

-9 (Catawba) 

44 (Rowan. Ir e d e ll, Davi e ) 

« (Surry, Yadkin) 

44 (Forsyth. Stok e s) 

4-§ (Rockingham) 

44 (Guilford) 

4^ (Alamance, Caswell) 

+8 (Orange, Person, Chatham) 



D e c e mb e r 1, 1996 



D e c e mb e r 1 



D e cember 1 



D e c e mber 1 



Decemb e r 1 



D e c e mber 



D e c e mb e r 1 



-W96 



4996 



4^>96 



-4^196 



-W96 



4^>96 



Jun e 1 



Jun e 1 



June 1 



Juno 1 



Jun e 1 



Jun e 1 



4^>96 



■4^>96 



4^196 



4^196 



4^>96 



4996 



11:6 



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June 14, 1996 



331 



PROPOSED RULES 



Mental Health Planning Areas (Constituent Counties) 



CON Beginning 
Review Date 



30 (Vano e , Granvill e , Franklin, Warr e n) 

3+ (Davidoon) 

3^ (Robeson, Bladen, Scotland, Columbus) 

34 (Cumberland) 

3§ (Leo, Harnett) 

36 (Johnston) 

27 (Wake) 

3« (Randolph) 

Vt (\Vayn e ) 

^ (Wilson, Greene) 

^ (Edg e comb e , Nash) 

M (Halifax) 

^ (Craven. Jon e s, Pamlico, Cart e r e t) 

% (Lenoir) 

3^ (H e rtford, B e rti e . Gat es , Northampton) 

^ (Beaufort, Washington, Tyrr e ll, Hyd e , Martin) 

40 (Pasquotanlv, Chowan, P e rquimans, Camd e n, Dare, Currituck) 

44 (Duplin, Sampson) 



Juno 1, 1996 



Nov e mber 1 



November 1 



November 1 



Nov e mb e r 1 



Novemb e r 1 



November 1 



November 1 



November 1 



4^»96 



4-996 



4^>96 



4^>96 



4^»96 



A99^ 



1997 



\m% 



May 1, 1996 

May 1, 1996 

May 1, 1996 

May 1, 1996 

May 1, 1996 

May 1, 1996 

May 1, 1996 



M 



P996 



ay- 

May 1, 1996 
May 1, 1996 



(3) Category D. Subcategory End Stage Renal Disease Dialysis Stations. Dialysis station review in response 
to the "county need" or "facility need" methodologies shall be conducted under the provisions of 10 NCAC 
3R .3032. 

(4) Category F. Subcategory Home Health Agencies or Offices. 



HSA 



CON Beginning 
Re\iew Date 



I Octob e r 1. 1996 December 1. 1997 

II March 1, 1996 April 1. 1997 

III June 1, 4^»96 1997 

IV November 1 , 4^196 1997 

V March 1 , 4^»96 1997 

VI July 1 , 4996 1997 



332 



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11:6 



PROPOSED RULES 



(5) Category G. Subcategory N e w Dialysis Stations ao a result of "Adjust e d N ee d D e termination s . 
Demonstration Project on Pediatric Nursing Care 



County 
Geographic Area 



Cartor e t 
Statewide 



CON Beginning 
Review Date 



March 1, 1996 
March 1, 1996 
February 1. 1997 



(6) Category H. 

(a) Subcategory Magnetic Resonance Imaging Scanners 



County 


CON Beginning 
Review Date 


Buncombe 


April 1, 1997 



rb) Subcategory Oncology Treatment Centers 



Oncology Treatment Centers 
Planning Areas (Counties) 


CON Beginning 
Review Date 


Halifax, Hertford, Northampton 


Mav 1, 1997 



(7) (4) Applications for certificates of need will be reviewed pursuant to the following review schedule, unless another 
schedule has been specified in Items (1) through (54 (6) of this Rule or it has been determined in 10 NCAC 3R 
.3030 that there is no need for the health service or facility proposed by the applicant. 



CON Beginning 


HSA 


HSA 


Review Date 


I, 11. Ill 


IV, V, VI 


January 1 


-- 


- 


February 1 


- A^ B.G, I 


-G 


March 1 


A, B, F. G, 1 ^ 


A, B, F, Gt I 


April 1 


B, F,H, 1 


-- 


May 1 


-- 


B, C, H, I 


June 1 


A, C, D,47^ F^I 


D 


July 1 


- 


A, F, I 


August 1 


B, E, I 


-- 


September 1 


-- 


B, E, I 


October 1 


A, El Ft I 


- 


November 1 


- 


A, C, F, I 


December 1 


C, D, F,H, I 


B, D, H, I 



11:6 



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June 14, 1996 



333 



PROPOSED RULES 



Authority G.S. 131E-176(25); 13 IE- 177(1); 131E-183(b). 

.3030 FACILITY AND SERVICE NEED DETERMINATIONS 

Facility and service need determinations are shown in Items (1) - (8) of this Rule. The need determinations shall be 
revised continuously throughout 4996 1997 pursuant to 10 NCAC 3R .3040. 

(1) Category A. Acute Health Service FacUities. It is determined that there is no need for additional acute care beds 
and no reviews are scheduled. 

(2) Category B. Long-Term Nursing Facility Beds. It is determined that the counties listed below need additional 
Long-Term Nursing Facility Beds as specified. There is no need for additional Long-Term Nursing Facility Beds 
in other counties and no other reviews are scheduled. 



County 



Number of Nursing 
Beds Needed 



Al e xand e r 



H e nd e rson 



McDowoll 



Rutherford 



Watauga 



Alamono e 



Wake 

Brunswick 

Cumb e rland 



New Hanovor 

Pander 

B e aufort 

Onslow 

fttt 

Burke 



Cherokee 



Jackson 



Macon 



Yancey 
Caswell 



Davidson 



Surry 
Yadkin 



Iredel 



30 
90 
30 
40 
30 
90 
30 
«0 
60 
90 
90 
30 
30 
40 
60 
70 
30 
30 
40 
20 
20 
100 
60 
30 
70 



334 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



PROPOSED RULES 



County 


Number of Nursing 
Beds Needed 


Lincoln 


30 


Union 


60 


Johnston 


70 


Wake 


140 


Hoke 


30 


Moore 


70 


Currituck 


10 


Greene 


— 


Martin 


30 


Nash 


50 



(3) Category C. 

(a) Psychiatric Facility Beds. It is determined that there is no need for additional psychiatric beds and no 
reviews are scheduled. 

(b) Intermediate Care Facility Beds for the Mentally Retarded. It is determined that the mental health planning 
ar e as listed in the following table there is no need for additional Intermediate Care Facility beds for the 
Mentally Retarded ("ICF/MR b e ds"), beds") and no reviews are scheduled. Th e tabl e id e ntifi e s th e numb e r 
of now child and adult ICF/MR bods needed by each of the listed planning area s . — Those now ICF/MR beds 
shall only bo used to oonvert o xjsting five bod ICF/MR bods into six bod facilitios. — Thoro is no need for 
n e w ICF/MR faoilitioo or for ICF/MR faciliti e s with mor e than six b e ds in th e s e planning ar e as. — Th e r e is 
no nood for any additional ICF/MR B e ds in any oth e r m e ntal h e alth planning ar e as and no oth e r review s 
are schodulod, except as provided in Rule 10 NCAC 3R .3040(a)(8). 



M e ntal H e alth Planning Ar e a (Constitu e nt Counties) 



Nood D e t e rminat iea- 



GhiW 



AduU 



-i (Buncombe. Madison, Mitchell. Yoncoy) 

-5 (Alleghany. A s he. Avery, Watauga. Wilke s ) 

-& (Caldw e ll, Burk e , Al e xander. McDowell) 

34- (Davidson) 

40 (Mocklonburg) 

43 (Stanly, Cabarrus. Union) 

+8 (Orang e . P e rson. Chatham) 

35 (Crav e n. Jon e s, Pamlioo, Cart e r e t) 



-4 
-Q 

-4- 
-0 

-4 



-4 



-0 

-a 






-4- 
-0 



(c) Chemical Dependency Treatment Beds. 

(i) It is determined that there is no need for any additional chemical dependency treatment beds other 
than detox-only beds for adults. The following table lists the mental health planning areas that need 
detox-only beds for adults and identifies the number of such beds needed in each planning area. 
There is no need for additional detox-only beds for adults in any other mental health planning areas. 
No other reviews for chemical dependency treatment beds are scheduled. 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



335 



PROPOSED RULES 



Mental Health Planning Areas 
(Constituent Counties) 



Mental Health 
Planning 
Regions 



Number of 

Detox-Only 

Beds Needed 



-4^ (Jackson. Haywood. Macon, Chorokoo, Clay. Graham. Swain) 

-4 (Transylvania. Henderson) 

-S (Caldwell, Burk e . Alexand e r, McDow e ll) 

-6 (Rutherford. Polk) 

-8 (Gaston. Lincoln) 

-9 (Catawba) 

-14 (Rowan. Iredell. Davi e ) 

« (Surry. Yadkin) 

44 (Forsyth. Stokos) 

44 (Rockingham) 

44 (Gu i lford) 

44 (Alamanc e . Casw e ll) 

4-8 (Orange, Per s on. Chatham) 

30 (Vance. Granville, Franklin, Warren) 

34 (Davidson) 

25 (Rob es on. Blad e n, Scotland, Columbus) 

34 (Cumberland) 

35 (Loo. Harnett) 
34 (John s ton) 

27 (Wake) 

38 (Randolph) 

34 (Wayne) 

33 (Wil s on. Gr ee n e ) 

33 (Edg e combe. Nash) 

34 (Halifax) 

35 (Craven. Jone s . Pamlico. Carteret) 

36 (Lenoir) 

38 (H e rtford. B e rti e . Gat e s, Northampton) 

39 (Beaufort. Washington. Tyrrell, Hydo. Martin) 

40 (Pa s quotank. Chowan. Perquimans. Camden. Dare, Currituck) 
I 44 (Duplin. Sampson) 



-m 



-w 



-w 
-w 
-w 
-w 

4^ 

4^ 
44€ 

44e 

44G 
44C 
-^iG 
-SG 
-SG 
-S€ 
-SG 
-SG 

sc 

-SG 



-40 
-40 

-4- 
-40 
-^0 
-8 
-40 
-^ 
-40 
-40 
-40 
-6 

-40 
-40 
-^ 
-40 
-40 
-4 
10 
-4 
-4« 
-40 
-6 
40 
40 
40 
-4 
-^ 
40 
40 



336 



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June 14, 1996 



11:6 



PROPOSED RULES 



(ii) "Detox-only beds for adults" are chemical dependency treatment beds that are occupied exclusively 

by persons who are eighteen years of age or older who are experiencing physiological withdrawal 

from the effects of alcohol or other drugs, 
(iii) The county or counties which comprise each mental health planning area are listed in 10 NCAC 3R 

.3010(b). 
(iv) Detox-only beds for adults may be developed outside of the mental health planning area in which they 

are needed if: 

(A) The beds are developed In a contiguous mental health planning area that is within the same 
mental health planning region, as defmed by 10 NCAC 3R .3010(c); and 

(B) The program board in the planning area in which the beds are needed and the program board 
in the planning area in which the beds are to be developed each adopt a resolution supporting 
the development of the beds in the contiguous planning area. 

(4) Category D. Kidney Disease Treatment Centers and Dialysis Stations Stations. Need for dialysis stations stationo. 
exc e pt as oth e r . viso provid e d in It e m (7) of thio Rulo. is determined semiannually as provided by 10 NCAC 3R 
.3032. 

(5) Category E. 

(a) Inpatient Rehabilitation Facility Beds. (!) Exc e pt a s provided in Sub item (5)(a)(ii) of this Rul e , it It is 
determined that there is no need for any additional inpatient rehabilitation facility beds and no reviews are 
scheduled. 

(ii) It is dotcrmincxl that there is a nood for a demonstration project consisting of ono inpatient 

rehabilitation unit containing no mor e than 10 inpati e nt r e habilitation faoilit)' b e ds in Wilson County. 

Th e purpos e of th e proj e ct shall b e to demonstrat e wh e th e r such a unit is viable in torms of cost. 

utilization, and good medical practice; whether such a unit increases the utilization of inpatient 

rehabilitation scr i 'icca by patient s who could benefit from s uch scp i 'ices; and whether such a unit 

improv e s pati e nt outcomoo. — An application for a c e rtificate of need for the demonstration proj e ct 

shfiik 

(A) Conform to the requirements of the rules in 10 NCAC 3R .2800. with the exc e ption of 10 

NCAC 3R .2803(b): 
•fB) D e monstrat e that th e proj e ct's r e habilitation s e r . 'io e 9 b e ds shall b e d e v e lop e d sol e ly by th e 

conv e rsion of e xisting lic e ns e d h e alth 6 e p . 'io e faoilit)' b e ds; 
fG) Demon s trate that the project's rehabilitation services beds shall bo licensed, certified, and 

placed into operation within 12 months after the certificate of need is issued; 
fDf- — Contain th e applicant's commitm e nt to submit to th e C e rtificat e of Need Section thr ee annual 

r e ports on th e op e ration of th e d e monstration proj e ct. — Th e annual r e port shall b e postmark e d 

on or before the thirtieth day following the anniversary' of the licensing of the demonstration 

project and shall contain the following information: 
(T) The d e monstration proj e ct's av e rag e p e r di e m pati e nt charg e s for th e past y e ar; 

fli) — Th e d e monstration proj e ct's av e rag e p e r discharg e pati e nt charg e s for th e past y e ar; 
(HI) — j\n accounting of the opwrotional co s ts and patient revenue s of the demon s tration project 
for the pa s t year; 

(IV) The total number of pati e nts serv e d by th e d e mon s tration proj e ct during th e past y e ar; 

fV) — A list of th e d e monstration proj e ct's pati e nt payor sourc e s for th e past year; 

(VI) A description of the demonstration project' s patient origin by county for the past year; 

(Vn) An ascesom e nt of pati e nt outcome s in th e d e mon s tration proj e ct during th e past y e ar. 
Th e target averag e annual occupancy rat e for th e d e monstration proj e ct io th e av e rag e of th e av e rag e annual 
occupancy rates reported by or for all exi s ting inpatient rehabilitation facilities or units in their 1996 license 
renewal applications. The demonstration project shall meet or exceed this target average annual occupancy rate 
during at l e ast on e p e riod of 12 con se cutiv e cal e ndar months within fiv e y e ars aft e r th e d e monstration proj e ct is 
licensed. If it does not. th e d e monstration proj e ct shall b e t e rminated automatically and th e b e ds shall r e v e rt to 
their prior health s ervice facility bed catogor)'. — Additionally, the rehabilitation facility bods shall automatically 
revert to their prior health service facility bed category' if the applicant voluntarily terminates the demonstration 
proj e ct. 

(b) Ambulatory Surg e ry Op e rating Rooms. Surgical Facilities. It is determined that there is no need for 
additional ambulatory surgery operating rooms surgical facilities and no reviews are scheduled, except that 
a Rural IVimary Care Hospital designated by the N.C. Office of Rural Health Services pursuant to Section 



11:6 NORTH CAROLINA REGISTER June 14, 1996 337 



PROPOSED RULES 



1820(f) of the Social Security Act may apply for a certificate of need to convert existing operating rooms 
for use as a freestanding ambulatory surgical facility. It is also determined that there is no need for 
additional licensed ambulatory surgical facilities to perform gastrointestinal endoscopy procedures in the 
State. 
(6) Category F. 

(a) New Home Health Agencies or Offices. It is determined that the Health Service Areas identified in 10 
NCAC 3R .3010 and listed below need additional Home Health Agencies or Offices as specified. 



HSA 


Number 


of Agencies 




or 


Offices Needed 


I 








n 








ra 








IV 








V 








VI 









(b) New Hospice Home Care Programs. It is determined that there is no need for additional Hospice Home 
Care Programs and no reviews are scheduled. 

(c) New Hospice Inpatient Beds. 

(i) Single Counties. Single counties with a projected deficit of six or more beds are allocated beds based 
on the projected deficit. It is determined that there is no need for additional single county Hospice 
Inpatient Bed facilities and no reviews are scheduled, 
(ii) Contiguous Counties. It is determined that any combination of two or more contiguous counties taken 
from the following list shall have a need for new hospice inpatient beds if the combined bed deficit 
for the grouping of contiguous counties totals six or more beds. Each county in a grouping of 
contiguous counties must have a deficit of at least one and no more than five beds. The need for the 
grouping of contiguous counties shall be the sum of the deficits in the individual counties. For 
purposes of this Rule, "contiguous counties" shall mean a grouping of North Carolina counties which 
includes the county in which the new hospice inpatient facility is proposed to be located and any one 
or more of the North Carolina counties which have a common border with that county, even if the 
borders only touch at one point. No county may be included in a grouping of contiguous counties 
unless it is listed in the following table: 



County 



Hospice Inpatient 
Bed Deficit 



Alexander 

Ashe 

Burke 



Haywood 
Wilkes 



Mitch e ll 
Polk 

Rutherford 
Transylvania 



1 
1 
1 
1 
1 
4- 
1 
3 
1 



338 



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June 14, 1996 



11:6 



PROPOSED RULES 



County 


Hospice Inpatient 
Bed Deficit 


Watauga 


1 


AJamance 


4 


Davidson 


2 


Rockingham 


32 


Stokes 


2 


Surry — 


42 


Yancev 


1 
2 


Cabarrus 


Gaston 


43 


Iredell 




Lincoln 




Rowan 




Stanly 




Union 


31 


Chatham 




Durham 


54 


Johnston 




Lee 




Wake 




Bladen 




Brunswick 




Columbus 




Cumberland 


i 


Harnett 


Moore 


2 


Pender 




Richmond 


+ 2 


Robeson 




Scotland 




Bertie 




Craven 




Duplin 


31 


Edgecombe 




Hertford 





NORTH CAROLINA REGISTER 



June 14, 1996 



339 



PROPOSED RULES 



County 


Hospice Inpatient 
Bed Deficit 


Nash 






Northampton 






Onslow 






Pitt 






Wilson 






Vance 




A 



(7) Category G. Kidn e y Dicoooe Tr e atm e nt Facilities and DiaK'sis Station s . — It i s d e t e rmin e d that Cart e r e t and Daro 
Counties have a n ee d for additional dialysis station s that i s not rev e al e d by th e s txmdard nood methodology in 10 
NCAC 3R .3032 bccauao of conditions unique to those tv . 'o counties. — The dialysis station nood in Carteret and 
Dare Counties io shown in the following table: Subcategory Demonstration Project on Pediatric Nursing Care: 

(a) It is determined that nine nursing facility beds are needed to demonstrate the efficacy of short-term (less than 
30 days) care of medically fragile infants and children. Tliis demonstration project shall proyide services 
to support medically fragile children who are primarily cared for at home and shall provide data to assist 
in determining if these children can be successfully cared for at home over the long-term with intermittent 
inpatient nursing facility admission. Because of improved medical procedures and care, more infants with 
complex medical needs are surviving and are being discharged from hospitals. The medical equipment and 
care needed by these children in the home is quite sophisticated. Pediatric patients suffering from acquired 
brain injury or from major trauma with significant orthopaedic problems may also require continued 
services, which include intermittent inpatient nursing care services, after discharge from rehabilitation 
hospitals. The proposed project shall be designed to ease the transition from the hospital environment to 
care at home for these patient groups. It shall also offer respite care and other services to low birth-weight 
children, to children with serious chronic conditions, and to children with rehabilitation needs. 

(b) An applicant for the project shall demonstrate that home health services shall be provided through a home 
health agency. Furthermore, an applicant shall demonstrate coordination with other health services, 
including a hospice provider, an acute care provider, and an inpatient rehabilitation provider. Project 
oversight shall include at least one Pediatrician who is willing to serve as medical advisor and willing to 
assist in evaltiation of the demonstration project's effectiveness. The goal of the services provided shall be 
for long-term maintenance of the pediatric patient at home. 

(c) TTie demonstration project shall provide data to evaluate the effectiveness of this type of program in a least 
these ways: 

(i) Enhanced parent confidence/willingness to care for the child at home 

(ii) Reduced length of stay for hospitalization episodes 
(iii) Reduced hospitalizations/rehospitalizations 
(iv) Reduced incidence of institutionalization of children to long-term care facilities 

(v) Outcomes of care ;; especially relative to rehabilitation, chronic disease care 
(vi) Cost data ;; cost efficiencies, expense, reimbursement issues. 

(d) The demonstration project shall provide data to evaluate if additional programs in North Carolina would 
benefit the medically fragile pediatric population. Data shall be provided to the NC State Health 
Coordinating Council at least annually, beginning in the second year of the project's operation. Annual data 
reporting is to continue, until directed otherwise by the State Health Coordinating Council, or until the 
demonstrated activity becomes incorporated as a regular part of the State Medical Facilities Plan. 



Number of 
Count)' N e w Dialysis Stations Noodod 

Geographic Nursing Beds Needed for the Pediatric 

Area Demonstration Project 



Cart e r e t 



340 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



PROPOSED RULES 



Number of 
Count)' N e w Dialyoio Stationo Noodod 

Geographic Nursing Beds Needed for the Pediatric 

Area Demonstration Project 



Statewide 



4 
9 



(b) 



(c) 



(d) 



(8) Category H. 

(a) Open heart surgery services. It is determined that there is no need for additional open heart surgery services 
and no reviews are scheduled; except that a health service facihty that currently provides these services may 
apply for a certificate of need to expand its existing services at its existing site or location to moot spocific 
seeds if die existing services were utilized at or above 80% of capacity during the J2 month period reflected 
in the most recent licensure a pplication on fUe with the Division of Facility Services, utilization of tho 
hoalth o e P i 'io e faoilit)''o e xisting opon h e art surg e r)' o e rviooo oxooodo 8 0% of oapaoit)'. 
Heart-Lung Bypass Machines. It is determined that there is no need for additional heart-lung bypass 
machines and no reviews are scheduled; except that a health service facility that currently provides open 
heart surgery services may apply for a certificate of need to acquire additional heart-lung bypass machinery 
at its existing site or location if the existing heart-lung machinery used by the health service facility i« was 
utilized at or above 80% of capacity during the ^2 month period reflected in the most recent licensure 
application on file with the Division of Facility Services. 

Cardiac Angioplasty Equipment. It is determined that there is no need for additional cardiac angioplasty 
equipment and no reviews are scheduled; except that a health service facility that currently provides cardiac 
angioplasty services may apply for a certificate of need to acquire additional cardiac angioplasty equipment 
at its existing site or location if utilization of the existing cardiac angioplasty equipment used by the health 
service facility oxooodo was utilized at or above 80% of oapaoit)'. capacity during the 12 month period 
reflected in the most recent licensure application on file with the Division of Facility Services. 
Cardiac Catheterization Equipment. It is determined that there is no need for additional fixed or mobile 
cardiac catheterization equipment and no reviews are scheduled; except that a health service facility that 
currently provides cardiac catheterization services may apply for a certificate of need to acquire additional 
cardiac catheterization equipment at its existing site or location i f utilization of the existing cardiac 
catheterization equipment used by the health service facility oxceods was utilized at or above 80% of 
capacity, capacity during the 12 month period reflected in the most recent licensure application on file with 
the Division of Facility Services. Mobile cardiac catheterization equipment and services shall only be 
approved for development on hospital sites. 

Solid organ transplant services shall be developed and offered only by academic medical center teaching 
hospitals as designated in 10 NCAC 3R .3050(a)(3). It is determined that there is no need for new solid 
organ transplant services and no reviews are scheduled. 

Bone Marrow Transplantation Services. It is determined that allogeneic bone marrow transplantation 
services shall be developed and offered only by academic medical center teaching hospitals as designated 
in 10 NCAC 3R .3050(a)(3). It is determined that there is no need for additional allogeneic or autologous 
bone marrow transplantation services and no reviews are scheduled. 

Gamma Knives. It is determined that there is no need for gamma knives and no reviews are scheduled. 
Positron Emission Tomography Scanners. It is determined that there is no need for additional positron 
emission tomography scanners for purposes other than research and no reviews are scheduled. 
Lithotriptors. It is determined that there is no need for additional lithotriptors and no reviews are scheduled. 
Magnetic Resonance Imaging Scanners. It is determined that Buncombe County has a need for one 
additional fixed magnetic resonance imaging scanner. There is no need for additional fixed magnetic 
resonance imaging scanners in other counties and no other reviews are scheduled. There is no need for any 
conversion of a mobile magnetic resonance imaging scanner site to a fixed magnetic resonance imaging 
scanner site in any county and no reviews are scheduled. 
Oncology Treatment Centers and Linear Accelerators, 
(i) It is determined that there is no need for any additional oncology treatment centers in the State and 

no reviews are scheduled, 
(ii) It is determined that one linear accelerator is needed in the planning area consisting of Halifax, 



(e) 



(0 



(g) 

m 
m 



£k} 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



341 



PROPOSED RULES 



Hertford, and Northampton Counties. There is no need for additional linear accelerators in any other 
counties and no other reviews are scheduled. 

Authority G.S. 131E-176(25); 13 IE- 177(1); 131E-183(b). 

.3032 DIALYSIS STATION NEED DETERMINATION 

(a) The Medical Facilities Planning Section (MFPS) shall determine need for new dialysis stations two times each calendar 
year, and shall make a report of such determinations available to all who request it. This report shall be called the North 
Carolina Semiannual Dialysis Report (SDR). Data to be used for such determinations, and their sources, are as follows: 

(1) Numbers of dialysis patients, by type, county and facility, from the Southeastern Kidney Council, Inc. (SEKC) 
and the Mid-Atlantic Renal Coalition, Inc. as of December 31, 1995 1996 for the March SDR and as of June 30, 
+996 1997 for the September SDR. 

(2) Certificate of need decisions, decisions apf)ealed, appeals settled, and awards, from the Certificate of Need Section, 
DFS. 

(3) Facilities certified for participation in Medicare, from the Certification Section, DFS. 

(4) Need determinations for which certificate of need decisions have not been made, from MFPS records. 

Need determinations in this report shall be an Integral part of the State Medical Facihties Plan, as provided in G.S. 131E-183. 

(b) Need for new dialysis stations shall be determined as follows: 

(1) County Need 

(A) The average annual rate (%) of change in total number of dialysis patients resident in each county from the 
end of 4994- 1992 to the end of 4995 1996 is multiplied by the county's 4995 1996 year end total number 
of patients in the SDR, and the product is added to each county's most recent total number of patients 
reported in the SDR. TTie sum is the county's projected total 1996 1997 patients. 

(B) The percent of each county's total patients who were home dialysis patients at the end of 4995 1996 is 
multiplied by the county's projected total 4996 1997 patients, and the product is subtracted from the county's 
projected total 1996 1997 patients. The remainder is the county's projected 1996 1997 in-center dialysis 
patients. 

(C) The projected number of each county's 1996 1997 in-center patients is divided by 3.2. The quotient is the 
projection of the county's 1996 1997 in-center dialysis stations. 

(D) From each county's projected number of 4996 1997 in-center stations is subtracted the county's number of 
stations certified for Medicare, CON-approved and awaiting certification, awaiting resolution of CON 
appeals, and the number represented by need determinations in previous State Medical Facilities Plans or 
Semiannual Dialysis Reports for which CON decisions have not been made. TTie remainder is the county's 
1996 1997 station need projection. 

(E) If a county's 4996 1997 station need projection is ten or greater and the SDR shows that utilization of each 
dialysis facility in the county is 80% or greater, the 1996 1997 county station need determination is the same 
as the 1996 1997 station need projection. If a county's 1996 1997 station need projection is less than ten 
or the utilization of any dialysis facility in the county is less than 80%, the county's 1996 1997 station need 
determination is zero. 

(2) Facility Need: 

A dialysis facility located in a county for which the result of the County Need methodology is zero in the reference 
Semiannual Dialysis Report (SDR) is determined to need additional stations to the extent that: 

(A) Its utilization, reported in the SDR, is greater than 3.2 patients per station. 

(B) Such need, calculated as follows, is reported in an application for a certificate of need: 

(i) The facility's number of in-center dialysis patients reported in the previous SDR (SDRi) is subtracted 
from the number of in-center dialysis patients reported in the current SDR (SDR2). The difference 
is multiplied by 2 to project the net in-center change for 1 year. Divide the projected net in-center 
change for the year by the number of in-center patients from SDRj to determine the projected annual 
growth rate. 

(ii) The quotient from Subpart fb)(2)(B)(i) of this Rule is divided by 12. 

(iii) The quotient from Subpart (b)(2)(B)(ii) of this Rule is multiplied by the number of months from the 

most recent month reported in the current SDR until the end of calendar 1996. 1997. 
(iv) The product from Subpart (l3)(2)(B)(iii) of this Rule is multiplied by the number of the facility's in- 
center patients reported in the current SDR and that product is added to such reported number of in- 
center patients. 

(v) The sum from Subpart (b)(2)(B)(iv) of this Rule is divided by 3.2, and from the quotient is subtracted 
the facility's current number of certified and pending stations as recorded in the current SDR. The 



342 NORTH CAROLINA REGISTER June 14, 1996 11:6 



PROPOSED RULES 



remainder is the number of stations needed. 
(C) The facility may apply to expand to meet the need established in Subpart (b)(2)(B)(v) of this Rule, up to a 
maximum of ten stations, 
(c) The schedule for publication of the North Carolina Semiannual Dialysis Report (SDR) and for receipt of certificate 
of need applications based on each issue of this report in 1996 1997 shall be as follows: 



Dat e Data for Receipt of Publication Receipt of Beginning 

Period Ending SEKC Report of SDR CON Applications Review Dates 



Doo. 31, 1995 Fob. 28, 1996 March 20, 1996 May 16, 1996 Juno 1, 1996 

Juno 30, 1096 Aug. 31, 1996 Sept. 20, 1996 Nov. 15, 1996 Doc. 1, 1996 

Dec. 31, 1996 Feb. 28, 1997 March 20, 1997 May 16, 1997 June 1. 1997 

June 30. 1997 Aug. 29, 1997 Sept. 19, 1997 Nov. 14, 1997 Dec. 1, 1997 



(d) An application for a certificate of need pursuant to this Rule shall be accepted only if it demonstrates a need by 
utilizing one of the methods of determining need outlined in this Rule. 

(e) An application for a new End Stage Renal Disease facility facility, other than applications for dialyaia stations to bo 
dovclopod in Daro and Cartorot Countioa pursuant to 10 NCAC 3R .3030 (7). shall not be approved unless it documents 
the need for at least 10 stations based on utilization of 3.2 patients per station per week. 

(f) Home patients will not be included in determination of need for new stations. 

Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b). 

.3040 REALLOCATIONS AND ADJUSTMENTS 

(a) REALLOCATIONS. 

(1) Reallocations shall be made only to the extent that 10 NCAC 3R .3030 determines that a need exists after the 
inventory is revised and the need determination is recalculated. 

(2) Beds or services which are reallocated once in accordance with this Rule shall not be reallocated again. Rather, 
the Medical Facilities Planning Section shall make any necessary changes in the next published amendment to 10 
NCAC 3R .3030. 

(3) Dialysis stations that are withdrawn, relinquished, not applied for or decertified shall not be reallocated. Instead, 
any necessary redetermination of need shall be made in the next scheduled publication of the Semiannual Dialysis 
Report. 

(4) Appeals of Certificate of Need Decisions on Applications. Need determinations of beds or services for which the 
CON Section decision has been appealed shall not be reallocated until the appeal is resolved. 

(A) Appeals Resolved Prior to S e pt e mb e r August 17: If an appeal is resolved in the calendar year prior to 
Soptombor August 17, the beds or services shall not be reallocated by the CON Section; rather the Medical 
Facilities Planning Section shall make the necessary changes in the next amendment to 10 NCAC 3R .3030. 
(B) Appeals Resolved On Or After S e pt e mb e r August 17: If the appeal is resolved on or after S e pt e mb e r 
August 17 in the calendar year, the beds or services, except for dialysis stations, shall be made available 
for a review period to be determined by the CON Section, but beginning no earlier than 60 days from the 
date that the appeal is resolved. Notice shall be given by the Certificate of Need Section no less than 45 
days prior to the due date for receipt of new applications. 

(5) Withdrawals and Relinquishments. Except for dialysis stations, a need determination for which a certificate of 
need is issued, but is subsequently withdrawn or relinquished, is available for a review period to be determined 
by the Certificate of Need Section, but beginning no earlier than 60 days from: 

(A) the last date on which an appeal of the notice of intent to withdraw the certificate could be filed if no appeal 
is filed, 

(B) the date on which an appeal of the withdrawal is finally resolved against the holder, or 

(C) the date that the Certificate of Need Section receives from the holder of the certificate of need notice that 
the certificate has been voluntarily relinquished. 

Notice of the scheduled review jjeriod for the reallocated services or beds shall be given no less than 45 days prior 
to the due date for submittal of the new applications. 

(6) Need Determinations for which No Applications are Received 



11:6 NORTH CAROLINA REGISTER June 14, 1996 343 



PROPOSED RULES 



(A) Services or Beds with Scheduled Review in the Calendar Year on or Before October September 1: Need 
d e t e rminations, or portions of s uoh n ee d, for s e r - 'ic e s or b e ds in thio catogor^^ includ e long t e rm nuroing oojo 



bcMis. hom e h e alth ag e ncios or offio e o. hospic e hom e oar e programs, hospic e inpati e nt b e ds, and bodo in 



intcrmediato care facilities for the mentally retarded (TCF/NIR) with the exception of ICF/NIR nocd 



determinations with a schodulod review that begins after October 1 . The Certificate of Need Section shall 
not reallocate the services or beds in this category for which no applications were received, because the 
Medical Facilities Planning Section will have sufficient time to make any necessary changes in the 
determinations of need for these services or beds in the next annual amendment to 10 NCAC 3R .3030. 
(B) Services or Beds with Scheduled Review in the Calendar Year After October September 1: Ncxad 
det e rminations for s e r . 'ices or b e ds in this cat e gop . ' includ e acut e car e b e ds, psychiatric b e ds, oubotanoo 



abus e bed s , ICF/NIR b e ds, bon e marrow transplantation son i ico s , bum intensiv e car e s e rvic e s, neonatal 



intensive care scr^'iccs. open heart surgorv' sorvioea. solid organ transplantation scr i 'iccs. air ambulance 



equipment, cardiac ongioplasticy equipment, cardiac catheterization equipment, heart lung bypass machines 



gamma kniv e s, lithotriptors, magnetic resonanc e imaging scann e rs, positron emission tomography scannoro, 



major m e dical e quipm e nt as defin e d in G.S. 131E 176(Mf), diagnostic centers and oncology tr e atment 
centers for which review commences after October 1 . A need determination in this category for which no 
application has been received by the last due date for submittal of applications shall be available to be 
appUed for in the second Category I review period Ln the next calendar year for the applicable HSA. Notice 
of the scheduled review period for the reallocated beds or services shall be given by the Certificate of Need 
Section no less than 45 days prior to the due date for submittal of new applications. 

(7) Need Determinations not Awarded because Application Disapproved. 

(A) Disapproval in the Calendar Year prior to September August 17: Need determinations or portions of such 
need for which applications were submitted but disapproved by the Certificate of Need Section before 
September August 17, shall not be reallocated by the Certificate of Need Section. Instead the Medical 
Facilities Planning Section shall make the necessary changes in the next annual amendment to 10 NCAC 
3R .3030 if no appeal is filed. 

(B) Disapproval in the Calendar Year on or After S e pt e mb e r August 17: Need determinations or portions of 
such need for which applications were submitted but disapproved by the Certificate of Need Section on or 
after September August 17, shall be reallocated by the Certificate of Need Section except for dialysis 
stations. A need in this category' shall be available for a review period to be determined by the Certificate 
of Need Section but beginning no earlier than 95 days from the date the application was disapproved, if no 
appeal is filed. Notice of the scheduled re\ iew period for the reallocation shall be mailed no less than 80 
days prior to the due date for submittal of the new applications. 

(8) Reallocation of D e lic e ns e d and Decertified ICF/MR Beds. If an ICF/MR facility's lic e ns e and Medicaid 
certification afe is relinquished or revoked, the ICF/MR beds in the facility shall be reallocated by the Department 
of Human Resources, Division of Facihty Services, Medical Facilities Planning Section pursuant to the provisions 
of the following sub-parts. The reallocated beds shall only be used to convert five-bed ICF/MR facilities into six- 
bed facilities. 

(A) If the number of five-bed ICF/MR facilities in the mental health planning region in which the beds are 
located equals or exceeds the number of reallocated beds, the beds shall be reallocated solely within the 
planning region after considering the recommendation of the Regional Team of Developmental Disabilities 
Services Directors. 

(B) If the number of five-bed ICF/MR facilities in the mental health planning region in which the beds are 
located is less than the number of reallocated beds, the Medical Facilities Planning Section shall reallocate 
the excess beds to other planning regions after considering the recommendation of the Developmental 
Disabilities Section in the Division of Mental Health, Developmental Disabilities, and Substance Abuse 
Services. The Medical Facilities Planning Section shall then allocate the beds among the planning areas 
within those planning regions after considering the recommendation of the appropriate Regional Teams of 
Developmental Disabilities Services Directors. 

(C) The Department of Human Resources, Division of Facility Services, Certificate of Need Section shall 
schedule reviews of applications for these beds pursuant to Subparagraph (a)(5) of this Rule. 

fb) CHANGES IN NEED DETERMINATIONS. 
(1) The need determinations in 10 NCAC 3R .3030 and .3032 shall be revised continuously throughout the calendar 
year to reflect all changes in the inventories of: 

(A) the health services listed at G.S. 131E-176 (16)f; 

(B) health service facilities; 

(C) health service facility beds; 



344 NORTH CAROLINA REGISTER June 14, 1996 11:6 



PROPOSED RULES 



(D) dialysis stations; 

(E) the equipment listed at G.S. 131E-176 (16)fl; and 

(F) mobile medical equipment; 

as those changes are reported to the Medical Facilities Planning Section. However, need determinations in 
10 NCAC 3R .3030 or .3032 shall not be reduced if the relevant inventory is adjusted upward 30 days or 
less prior to the first day of the applicable review period. 

(2) Inventories shall be updated to reflect: 

(A) decertification of home health agencies or offices, intermediate care facilities for the mentally retarded, and 
dialysis stations; 

(B) delicensure of health service facilities and health service facility beds; 

(C) demolition, destruction, or decommissioning of equipment as listed at G.S. 131E-176(16) fl and s; 

(D) elimination or reduction of a health service as listed at G.S. 131E-176(16) f; 

(E) psychiatric beds licensed pursuant to G.S. 131E-184(c); 

(F) certificates of need awarded, relinquished, or withdrawn, subsequent to the preparation of the inventories 
in the State Medical Facilities Plan; and 

(G) corrections of errors in the inventory as reported to the Medical Facilities Planning Section. 

(3) Any person who is interested in applying for a new institutional health service for which a need determination is 
made in 10 NCAC 3R .3030 or .3032 may obtain information about updated inventories and need determinations 
from the Medical Facilities Planning Section. 

(4) Need determinations resulting from changes in inventory shall be available for a review period to be determined 
by the Certificate of Need Section, but beginning no earlier than 60 days from the date of the action identified in 
Subsection fb). Notice of the scheduled review period for the need determination shall be given no less than 45 
days prior to the due date for submittal of the new applications. 

Authority G.S. 131E-176(25); 131E-177(1); 131E-183(b). 

.3050 POLICIES 

(a) ACUTE CARE FACIUTIES AND SERVICES 

(1) Use of Licensed Bed Capacity Data for Planning Purposes. For planning purposes the number of licensed beds 
shall be determined by the Division of Facility Services in accordance with standards found in 10 NCAC 3C .1510 
Bod Capacity. .6200 and .3102(d). 

(2) Utilization of Acute Care Hospital Bed Capacity. Conversion of underutilized hospital space to other needed 
purposes shall be considered an alternative to new construction. Hospitals falling below utilization targets in 10 
NCAC 3R .3050(a)(4) are assumed to have underutilized space. Any such hospital proposing new construction 
must clearly demonstrate that it is more cost-effective than conversion of existing space. 

(3) Exemption from Plan Provisions for Certain Academic Medical Center Teaching Hospital Projects. Projects for 
which certificates of need are sought by academic medical center teaching hospitals may qualify for exemption 
from provisions of 10 NCAC 3R .3030. 

(A) The State Medical Facilities Planning Section shall designate as an Academic Medical Center Teaching 
Hospital any facility whose application for such designation demonstrates the following characteristics of 
the hospital: 

(i) (A)Exomption from Plan provisions for certain Academic Modical Center Teaching Hospital projects 
that s e p i ' e Serves as a primary teaching site for a school of medicine and at least one other health 
professional school, providing undergraduate, graduate and postgraduate education. 
(ii) (B)Exomption from provisions of 10 NCAC 3R .3030 s hall bo granted to project s submitted by 
Acadomio Modical Center Teaching Ho s pitals designated prior to January 1, 1990 and houses Houses 
extensive basic medical science and clinical research programs, patients and equipment, e quipm e nt, 
and which projocto comply with on e of th e following conditions. 
(iii) Serves the treatment needs of patients from a broad geographic area through multiple medical 
specialties. 

(B) Exemption from the provisions of JO NCAC 3R .3030 shall be granted to projects submitted by Academic 
Medical Center Teaching Hospitals designated prior to January J_^ 1990 which projects comply with one of 
the following conditions: 

(i) Necessary to complement a specified and approved expansion of the number ef or types of students, 
residents or faculty, as certified by the head of the relevant associated professional school; or 

(ii) Necessary to accommodate patients, staff or equipment for a specified and approved expansion of 
research activities, as certified by the head of the entity sponsoring the research; or 



U:6 NORTH CAROLINA REGISTER June 14, 1996 345 



PROPOSED RULES 



(iii) Necessary to accommodate changes in requirements of specialty education accrediting bodies, 
evidenced by copies of documents issued by such bodies. 
(G) Sorv e s th e treatm e nt n e eds of pati e nts from a broad g e ographic ar e a through multipl e m e dical opooialtios 



(4) Reconversion to Acute Care. Facilities redistributing beds from acute care bed capacity to rehabilitation o 
psychiatric use shall obtain a certificate of need to convert this capacity back to acute care. Application for sue 
reconversion to acute care of beds converted to psychiatry or rehabihtation shall be evaluated against the hospital' 
utilization Ln relation to target occupancies used in determining need shown in 10 NCAC 3R .3030 without regar( 
to the acute care bed need shown in the Rule. These target occupancies are: 

Licensed Bed Capacity Percent Occupancy 

1-49 65 

50 - 99 70 

100 - 199 75 

200 - 699 80 

700 + 81.5 

(5) Multi-Specialty Ambulatory Surgery. After applying other required criteria, when superiority among two or mor 
competing ambulatory surgical facility certificate of need applications is uncertain, favorable consideration sha 
be given to "multi-specialty programs" over "specialty programs" in areas where need is demonstrated in 1 
NCAC 3R .3030. A multi-specialty ambulatory surgical program means a program providing services in at lea< 
three of the following areas; gynecology, otolaryngology, plastic surgery, general surgery, ophthalmology 
orthopedics, urology, and oral surgery. An ambulatory surgical facility shall provide at least two designate 
operating rooms with general anesthesia capabilities, and at least one designated recovery room. 

(6) Distribution of Inpatient Rehabilitation Beds. After applying other required criteria, when superiority among tw 
or more competing rehabilitation facility certificate of need appUcations is uncertain, favorable consideration sha 
be given to proposals that make rehabilitation services more accessible to patients and their families or are pa 
of a comprehensive regional rehabilitation network. 

(7) Replacement of Acute Care Bed Capacity. The evaluation of proposals for either partial or total replacement ( 



an acute care hospital shall be evaluated against the utilization of the total number of acute care beds in th 
applicant's hospital service system in relation to the target occupancy of the total number of beds in that hospitj 
service system which is determined as follows: 

Total Licensed Acute Care Beds Target Occupancy (Percent) 

i;49 65% 

50;99 70% 

100-199 75% 



200 - 699 80^ 



700 -I- 81.5% 

(8) Outpatient and Home Care. Rehabilitation care which can be provided in an outpatient or home setting shall b 



provided in these settings unless it has been determined by an appropriate utilization program that inpatient cai 
is necessary. All new inpatient rehabilitation programs are required to provide comprehensive outpatier 
rehabilitation services as part of their service delivery programs. 
(b) LONG-TERM CARE FACIUTIES AND SERVICES. 
(1) Provision of Hospital-Based Long-Term Nursing Care. A certificate of need may be issued to a hospital whic 
is licensed under G.S. 13 IE, Article 5, and which meets the conditions set forth below and other relevant rule; 
to convert up to ten beds from its licensed acute care bed capacity for use as hospital-based long-term nursing cai 
beds without regard to determinations of need in 10 NCAC 3R .3030 if the hospital: 

(A) is located in a county which was designated as non-metropolitan by the U. S. Office of Management an 
Budget on January 1 , +996 1997 ; and 

(B) on January 1, 1996 1997 , had a licensed acute care bed capacity of 150 beds or less. 
The certificate of need shall remain in force as long as the Department of Human Resources determines that tl 
hospital is meeting the conditions outlined in this Rule. 
"Hospital-based long-term nursing care" is defined as long-term nursing care provided to a patient who has be€ 
directly discharged from an acute care bed and cannot be immediately placed in a licensed nursing facility becaus 
of the unavailability of a bed appropriate for the individual's needs. Determination of the patient's need f( 
hospital-based long-term nursing care shall be made in accordance with criteria and procedures for determinin 



346 NORTH CAROLINA REGISTER June 14, 1996 11: 



PROPOSED RULES 



need for long-term nursing care administered by the Division of Medical Assistance and the Medicare program. 
Beds developed under this Rule are intended to provide placement for residents only when placement in other long- 
term care beds is unavailable in the geographic area. Hospitals which develop beds under this Rule shall discharge 
patients to other nursing facilities with available beds in the geographic area as soon as possible where appropriate 
and permissible under appUcable law. Necessary documentation including copies of physician referral forms (FL 
2) on all patients in hospital-based nursing units shall be made available for review upon request by duly authorized 
representatives of licensed nursing facilities. 

For purposes of this rule, beds in hospital-based long-term nursing care shall be certified as a "distinct part" as 
defined by the Health Care Financing Administration. Beds in a "distinct part" shall be converted from the existing 
licensed bed capacity of the hospital and shall not be reconverted to any other category or type of bed without a 
certificate of need. 

An application for a certificate of need for reconverting beds to acute care shall be evaluated against the hospital's 
service needs utilizing target occupancies shown in 10 NCAC 3R .3050(a)(4), without regard to the acute care bed 
need shown in 10 NCAC 3R .3030. A certificate of need issued for a hospital-based long-term nursing care unit 
shall remain in force as long as the following conditions are met: 

(i) the beds shall be certified for participation in the Title XVIH (Medicare) and Title XIX (Medicaid) 

Programs; 
(ii) the hospital discharges residents to other nursing facilities in the geographic area with available beds 

when such discharge is appropriate and permissible under applicable law; 
(iii) patients admitted shall have been acutely ill inpatients of an acute hospital or its satellites immediately 
preceding placement in the unit. 
The granting of beds for hospital-based long-term nursing care shall not allow a hospital to convert additional beds 
without first obtaining a certificate of need. Where any hospital, or the parent corporation or entity of such 
hospital, any subsidiary corp>oration or entity of such hospital, or any corporation or entity related to or affiliated 
with such hospital by common ownership, control or management: 

(I) applies for and receives a certificate of need for long-term care bed need determinations in 10 

NCAC 3R .3030; or 
(n) currently has nursing home beds licensed as a part of the hospital under G.S. 13 IE, Article 

5; or 
(in) currently operates long-term care beds under the Federal Swing Bed Program (P.L. 96-499), 
such hospital shall not be eligible to apply for a certificate of need for hospital-based long-term 
care nursing beds under this Rule. Hospitals designated by the State of North Carolina as 
Rural Primary Care Hospitals pursuant to section 1820(f) of the Social Security Act, as 
amended, which have not been allocated long-term care beds under provisions of G.S. 13 lE- 
175 through 131E-190 may apply to develop beds under this Rule. However, such hospitals 
shall not develop long-term care beds both to meet needs determined in 10 NCAC 3R .3030 
and this Rule. Beds certified as a "distinct part" under this Rule shall be counted in the 
inventory of existing long-term care beds and used in the calculation of unmet long-term care 
bed need for the general population of a planning area. Applications for certificates of need 
pursuant to this Rule shall be accepted only for the March 1 February 1 review cycle. Beds 
awarded under this Rule shall be deducted from need determinations for the county as shown 
in 10 NCAC 3R .3030. Continuation of this Rule shall be reviewed and approved by the 
Department of Human Resources annually. Certificates of need issued under policies 
analogous to this Rule in State Medical Facilities Plans subsequent to the 1986 Plan are 
automatically amended to conform with the provisions of this Rule at the effective date of this 
Rule. The Department of Human Resources shall monitor this program and ensure that 
patients affected by this Rule are receiving appropriate services, and that conditions under 
which the certificate of need was granted are being met. 
(2) Plan Exemption for Continuing Care Facilities. 

(A) Qualified continuing care facilities may include from the outset, or add or convert bed capacity for long- 
term nursing care without regard to the bed need shown in 10 NCAC 3R .3030. To qualify for such 
exemption, applications for certificates of need shall show that the proposed long-term nursing bed capacity: 
(i) Will only be developed concurrently with, or subsequent to construction on the same site, of facilities 
for both of the following levels of care: 

(I) independent living accommodations (apartments and homes) for persons who are able to carry 
out normal activities of daily living without assistance; such accommodations may be in the 
form of apartments, flats, houses, cottages, and rooms within a suitable structure; 



11:6 NORTH CAROLINA REGISTER June 14, 1996 347 



PROPOSED RULES 



(II) domiciliary care (homo for the aged) adult care beds) beds for use by persons who, because 
of age or disability require some personal services, incidental medical services, and room and 
board to assure their safety and comfort, 
(ii) Will be used exclusively to meet the needs of persons with whom the facility has continuing care 
contracts (in compliance with the Department of Insurance statutes and rules) who have lived in a 
non-nursing unit of the continuing care facility for a period of at least 30 days. Exceptions shall be 
allowed when one spouse or sibling is admitted to the nursing unit at the time the other spouse or 
sibling moves into a non-nursing unit, or when the medical condition requiring nursing care was not 
known to exist or be imminent when the individual became a party to the continuing care contract. 
Financial consideration paid by persons purchasing a continuing care contract shall be equitable 
between persons entering at the "independent living" and "domiciliary" levels of care, 
(iii) Reflects the number of beds required to meet the current or projected needs of residents with whom 
the facility has an agreement to provide continuing care, after making use of all feasible alternatives 
to institutional nursing care, 
(iv) Will not be certified for participation in the Medicaid program. 
(B) One half of the long-term nursing beds developed under this exemption shall be excluded from the inventory 
used to project bed need for the general population. Certificates of need issued under policies analogous 
to this Rule in State Medical Facilities Plans subsequent to the 1985 SMFP are automatically amended to 
conform with the provisions of this Rule at the effective date of this Rule. Certificates of need awarded 
pursuant to the provisions of Chapter 920, Session Laws 1983, or Chapter 445, Session Laws 1985 shall 
not be amended. 

(3) Development of Home Health Services. After applying other required criteria, when superiority among two or 
more competing home health agency or office certificate of need applications is uncertain, favorable consideration 
shall be given to proposals which: 

(A) provide an expanded scope of services (including nursing, physical therapy, speech therapy, and home health 
aide service); 

(B) provide the widest range of treatments within a given service; 

(C) have the ability to offer services on a seven days per week basis as required to meet patient needs; and 

(D) provide specialized services to address the needs of at least one of the following groups: nursing home 
patients in transition to the commimity, HIV/ AIDS patients, Alzheimer's Disease/senile dementia patients, 
or underserved patients in rural counties. 

(4) Need Determination Upon Termination of County's Sole Home Health Agency. When a home health agency's 
board of directors, or in the case of a public agency, the responsible public body, votes to discontinue the agency's 
provision of home health services; and 

(A) the agency is the only home health agency with an office physically located in the county; and 

(B) the agency is not being lawfully transferred to another entity; 

need for a new home health agency or office in the county is thereby established through this Rule. Following 
receipt of written notice of such decision from the home health agency's chief administrative officer, the Certificate 
of Need Section shall give public notice of the need for one home health agency or office in the county, and the 
dates of the review of applications to meet the need. Such notice shall be given no less than 45 days prior to the 
final date for receipt of applications in a newspaper serving the county and to home health agencies located outside 
the county reporting serving county patients in the most recent licensure applications on file. 

(5) Availability of Dialysis Care. After applying other required criteria, when superiority among two or more 
competing dialysis facility or station certificate of need applications is uncertain, favorable consideration shall be 
given to applicants proposing to provide or arrange for: 

(A) home training and backup for patients suitable for home dialysis in the ESRD dialysis facility or in a facility 
that is a reasonable distance from the patient's residence; 

(B) ESRD dialysis service availability at times that do not interfere with ESRD patients' work schedules; 

(C) services in rural, remote areas. 

(6) Determination of Need for Additional Nursing Beds in Single Provider Counties. When a long-term care facility 
with fewer than 80 nursing care beds is the only nursing care facility within a county, it may apply for a certificate 
of need for additional nursing beds in order to bring the minimum number of beds available within the county to 
no more than 80 nursing beds without regard to the nursing bed need determination for that county as listed in 10 
NCAC 3R .3030. 

(7) Relocation of Certain Nursing Facility Beds. 

(A) A certificate of need to relocate existing licensed nursing facility beds to another countv(ies) may be issued 



to a facility licensed as a nursing facility under G.S. 131E, Article 6^ Part A, provided that the conditions 



348 NORTH CAROLINA REGISTER June 14, 1996 11:6 



PROPOSED RULES 



set forth below and in 10 NCAC 3R .1100 and the review criteria in G.S. 131E-183(a) are met. A facility 
applying for a certificate of need to relocate nursing facility beds shall demonstrate that: 
(i) it is a non-profit nursing faciUty supported by and directly affiliated with a particular religion and that 

it is the only nursing facility in North Carolina supported by and affiliated with that religion; 
(ii) the primary purpose for the nursing facility's existence is to provide long-term care to followers of 

the specified religion in an environment which emphasizes religious customs, ceremonies, and 

practices: 
(Vn) relocation of the nursing facility beds to one or more sites is necessary to more effectively provide 

long-term nursing care to followers of the specified religion in an environment which emphasizes 

religious customs, ceremonies, and practices; 
(iv) the nursing facility is expected to serve followers of the specified religion from a multi-county area; 

and 
(v) the needs of the population presently served shall be met adequately pursuant to G.S. 131E-183. 

(B) Exemption from the provisions of 10 NCAC 3R .3030 shall be granted to a nursing facility for purposes 
of relocating existing licensed nursing beds to another county provided that it complies with all of the criteria 
listed in Subpart (b)(7)(A)(i) - (v) of this Rule. 

(C) Any certificate of need issued under this policy shall be subject to the following conditions: 

(i) the nursing facility shall relocate beds in at least two stages over a period of at least six months; and 
(ii) the nursing facility shall provide a letter to the Medical Facilities Licensure Section, on or before the 
date that the first group of beds are relocated, irrevocably committing the facility to relocate all of 
the nursing facility beds for which it has a certificate of need to relocate: and 
(iii) subsequent to providing the letter to the Medical Facilities Licensure Section described in Subpart 
(b)(7)('CXii) of this Rule, the nursing facility shall accept no new patients in the beds which are being 
relocated, except new patients who, prior to admission, indicate their desire to transfer to the facility's 
new location(s). 
(8) Relocation of Dialysis Stations. Relocations of existing dialysis stations are allowed only within the host county 
and to contiguous counties currently served by the facility. Certificate of need applicants proposing to relocate 
dialysis stations shall: 

(A) demonstrate that the proposal shall not result in a deficit in the number of dialysis stations in the county that 
would be losing stations as a result of the proposed project, as reflected in the most recent Semiannual 
Dialysis Report: and 

(B) demonstrate that the proposal shall not result in a surplus of dialysis stations in the county that would gain 
stations as a result of the proposed project, as reflected in the most recent Semiannual Dialysis Report. 

(c) MENTAL HEALTH FACILITIES AND SERVICES. 

(4^ Appropriat e Provision of Car e . — Hospitalization shall b e oonsid e r e d th e moot r e otriotiv e form of th e rapoutio 

intorvontion or troatmont and s hall bo usiad only when this lovol of 2 4 hour caro and supor i 'iaion is required to moot 
tho patient's health earo needs. 

(1) (3)Linkages Between Treatment Settings. Anyon e An applicant applying for a certificate of need for psychiatric, 
ICF/MR or substance abuse beds shall document that the affected area mental health, developmental disabilities 
and substance abuse authorities have been contacted and invited to comment on the proposed 9or . 'ico9, services. 
rolativo to their ondorsomont of tho projoct and involvomcnt in tho dovclopmont of a cliont admission and discharge 
agre e ment. 

(2) (3->Transfer of Beds from State Psychiatric Hospitals to Community Facilities. Beds in the State psychiatric 
hospitals used to serve short-term psychiatric patients may be relocated to community facilities. However, before 
beds are transferred out of the State psychiatric hospitals, appropriate services and programs shall be available in 
the community, community. — Th e proo e oo of tran s f e rring b e d s shall not r e sult in a n o t chang e in th e numb e r of 
po^'ohiatrio b e da availabl e , but rath e r in th e location of bodo count e d in th e e xisting inventory. State hospital beds 
which are relocated to community facilities shall be closed within ninety days following the date the transferred 
beds become operational in the community. Facilities proposing to operate transferred beds shall conmiit to serve 
the type of short-term patients normally placed at the State psychiatric hospitals. To help ensure that relocated 
beds will serve those persons who would have been served by the State psychiatric hospitals, a proposal to transfer 
beds from a State hospital shall include a written memorandum of agreement between the area MH/DD/SAS 
program serving the county where the beds are to be located, the Secretary of Human Resources, and the person 
submitting the proposal. 

(3) Allocation of Psychiatric Beds. A hospital submitting a Certificate of Need a pplication to add inpatient psychiatric 
beds shall convert excess licensed acute care beds to psychiatric beds. In determining excess licensed acute care 
beds, the hospital shall subtract the average occupancy rate for its licensed acute care beds over the previous 12- 



11:6 NORTH CAROLINA REGISTER June 14, 1996 349 



PROPOSED RULES 



month period from the appropriate target occupancy rate for acute care beds listed in JO NCAC 3R .3050("a')("4) 
and multiply the difference by the number of its existing licensed acute care beds. 

f4) Inpati e nt Poyohiatrio S e rv'io e o for Childr e n and Adol e co e nto. — Inpatient psyohiatrio tr e atm e nt of ohildron and 

adolosoonta which is moro oxtonsis'o than stabilization shall occur in unita which are sopamto and diotinot from both 
adult psychiatric unita and gonoral pediatric unit s . In ordor to maximize officioncy and onsuro the availability of 
a continuum of oar e , p s ychiatric b e dii for children and adol e sc e nts ohall b e dev e lop> e d in oonjunotion with outpatient 
tr e atm e nt program c . 

(5^ Involuntarily Committed Patients. — All certificatg of nood applications for psychiatric beds shall indicate the 

proponents' willingness to be designated to serve involuntarily committed patients. 

(4) Substance Abus e Programc to Treat Adol e aC 'e nts. — Adol e sc e nts shall r e c e iv e cubstanc e abus e tr e atment DorT i 'iooD that 

are distinct from servic e s provid e d to adults. 

(4) (^Determination of Intermediate Care Bed Need for Mentally Retarded/ Developmental ly Disabled Persons. After 
applying other required criteria, when superiority among two or more competing ICF/MR certificate of need 
applications is uncertain, favorable consideration shall be given to counties that do not have ICF/MR group homes 
when such counties are part of a multi-county area for which a need is shown in 10 NCAC 3R .3030. 

fS^ Transfer of Beds from State Mental Retardation Centers. — Facilities proposing to transfer ICF/MR beds from State 

mental retardation centers to communities shall demonstrate that thoy are committed to serving the same typo of 
r e sid e nts normally s e rv e d in the State m e ntal r e tardation c e nt e rs. — To ensur e that r e locat e d b e ds will s e rs' e those 
persons, any o e rtifioate of need application proposing to transf e r b e ds under thi s rul e must moot th e r e quiromontB 
of Chapter 858 of the 1983 Session Laws. — The application for transferred bod s s hall include a written agreement 
by the applicant with the following representatives which outlines the operational aspects of the bod transfers: 
Dir e ctor of th e Ar e a MH/DD/SAS Program s e r . 'ing th e county wh e r e th e program i s to b e locat e d; th e Director 

-tbe 



of th e applicabl e Stat e Mental R e tardation C e nt e r; — th e Chi e f of D e v e lopm e ntal — Disability S e rvio e o 
DMH/DD/SAS; and the Sooretary of the Department of Human Resources. 

{^ jMlocation of Dclicensed and Dec e rtified ICF/MR Beds. — ICF/MR bods located in facilities in which the license 

has been relinquish e d or revok e d, and c e rtification to participate in th e M e dicaid Program has b e en relinquished 
or r e voked, shall b e r e tain e d in the ICF/MR bod invontorv a nd allocat e d in th e sam e M e ntal H e alth Planning 
Region as one bod additions to existing five bed ICF/MR group homes. — The determination of the Mental Health 
Planning Area(s) to which the bed s will bo allocated will bo made by the Regional Team of Developmontol 
Disabiliti e s S e rvic es Directors of th e Ar e a M e ntal H e alth Offic e s in th e aff e cted Planning R e gion. — In th e e v e nt 
that th e r e ar e no more five bed ICF/MR faciliti e s in th e aff e ct e d planning region, th e D e v e lopm e ntal Disabiliti e s 
Section of tho Division of Mental Health, Developmental Disabilitie s , and Substance Abuse Services will 
rocommond allocation of th e bod s in another Planning Region in which one bed additions are needed to existing 
fiv e b e d faciliti es . — Following this d e t e rmination, th e C e rtificat e of N ee d Section will sch e dul e r e vi e ws for thooo 
r e allocations in acoordono e with 10 NCAC 3R.3010. 

Authorin- G.S. 131E-176(25): ]31E-177(1): 131E-183(b). 



TITLE ISA - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 tliat the EHNR - Environmental Manage- 
ment Commission intends to amend rule cited as 15A NCAC 
2Q .0102 with changes from the proposed te,xt noticed in the 
Register . Volume 10. Issue 16B, pages 1904 - 1908. Note: 
The text in BOLD w the ne^v proposed language. Other 
proposed language is the same as previously published in the 
North Carolina Register Volume 10 Issue 16B pages 1904- 
1908. 

Proposed Effective Date: November 1, 1996. 

Reason for Proposed Action: To receive additional 
comment on the proposed permit e.xemptions as brought to 



public hearing on December 19, 1995. The version of 15A 
NCAC 2Q .0102 that was brought to public hearing was 
incorrect: the Environmental Management Commission 
(EMC) had approved a different version. The EMC ap- 
proved version contains additional permit exemptions. 
Because of the incorrect version being printed and the 
number of comments received during the original hearing 
process, the Hearing Officer recommends that the comment 
period be extended for this rule to receive additional 
relevant comment. Therefore, the comment period is 
proposed to be re-opened for 30 days ending on July 15, 
1996. 

Comment Procedures: All persons interested in these 
matters are invited to submit written comments. The 
Hearing Record will remain open until July 15, 1996, to 
receive additional written statements. Comments should be 
sent to and additional information concerning the continu- 



350 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



PROPOSED RULES 



ance of the public comment period or the proposals may be 
obtained by contacting: Mr. Thomas C. Allen, Division of 
Environmental Management, PO Box 29580, Raleigh, NC 
27626-0580, (919) 733-1489 (phone), (919) 715-7476 (fax). 

Editor's Note: An agency may not adopt a rule that differs 
substantially from the text of a proposed rule published in 
the Register, unless the agency publishes the text of the 
proposed different rule and accepts comments on the new 
text. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2Q - AIR QUALITY PERMIT 
PROCEDURES 

SECTION .0100 - GENERAL PROVISIONS 

.0102 ACTIVmES EXEMPTED FROM PERMIT 
REQUIREMENTS 

(a) If a source is subject to any of the following rules, 
then the source is not exempted from permit requirements, 
and the exemptions in Paragraph (b) of this Rule do not 
apply: 

(1) new source performance standards under ISA 
NCAC 2D .0524 or 40 CFR Part 60, except: 
except new re s idential wood heaters! 

(A) 40 CFR Part 60. Subpart Dc. industrial, 
commercial, and institutional steam 
generating units; 

(B) 40 CFR Part 60^ Subpart Kb. volatile 
organic liquid storage vessels; or 

(C) 40 CFE Part 60, Subpart AAA, new 
residential wood heaters; 

(2) national emission standards for hazardous air 
pollutants under 15A NCAC 2D .1110 t«535 or 
40 CFR Part 61, except asbestos demolition and 
renovation activities; 

(3) prevention of significant deterioration under 15A 
NCAC 2D .0530; 

(4) new source review under 15A NCAC 2D .0531 
or .0532; 

(5) sources of volatile organic compounds subject to 
the requirements of 15A NCAC 2D .0900 that are 
located in Mecklenburg County in accordance 
with 15A NCAC 2D .0902; and Gaston Coun 

(6) sources required to apply maximum achievable 
control technology (MACT) for hazardous air 
pollutants under 15A NCAC 2D . 1 109 or under 
■ 1111 or 40 CFR Part 63 that are required to 
have a permit under Section .0500 of this 
Subchapter; or to apply generally available 
control technology' (GACT) or work practice 



s tandards for hazardous air pollutants under 
4 CFR Part 63, or 

(7) sources at facilities subject to 15A NCAC 2D 
. 1 100. (If a source does not emit a toxic air 
pollutant for which the facility at which it is 
located has been evaluated, it shall be exempted 
from needing a permit if it qualifies for one of the 
exemptions in Paragraph fb) of this Rule.) 
(b) The following activities do not need a permit or 
permit modification under this Subchapter; however, the 
Director may require the owner or operator of these 
activities to register them under 15A NCAC 2D .0200: 
(1) activities exempted because of category (These 
activities shall not be included on the permit 
application or in the permit.): 

(A) maintenance, upkeep, and replacement: 

(i) maintenance, structural changes, or 
repairs which do not change the 
capacity of such process, 
fuel-burning, refuse-burning, or 
control equipment, and do not in- 
volve any change in quality or nature 
or increase in quantity of emission 
of regulated air pollutants; 
(ii) housekeeping activities or building 
maintenance procedures, including 
painting buildings, resurfacing 
floors, roof repair, washing, porta- 
ble vacuum cleaners, sweeping, use 
and associated storage of janitorial 
products, or insulation removal; 
use of office supplies, supplies to 
maintain copying equipment, or 
blueprint machines, 
use of fire fighting equipment; 
paving parking lots; or 
replacement of existing equipment 
with equipment of the same size, 
type, and function that does not 
result in an increase to the actual or 
potential emission of regulated air 
pollutants and that does not affect 
the compliance status, and with re- 
placement equipment that fits the 
description of the existing equipment 
in the permit, including the applica- 
tion, such that the replacement 
equipment can be operated under 
that permit without any changes in 
the permit; 

(B) air conditioning or ventilation: comfort air 
conditioning or comfort ventilating systems 
which do not transport, remove, or exhaust 
regulated air pollutants to the atmosphere; 

(C) laboratory equipment activities : 
(i) bench-scale, on-site laboratory' 

equipment used exclusively for 



(iii) 



(iv) 

(V) 

(vi) 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



351 



PROPOSED RULES 



chemical or physical analysis for 
quality control purposes, staff in- 
struction, water or wastewater analy- 
ses, or non-production environmental 
compliance assessments; 

(ii) bench-scale experimentation, chemi- 
cal or physical analyses, training or 
instruction from not-for-profit, non- 
production educational laboratories; 
non production laborators' equipm e nt 

us e d — at — non profit — h e alth ef 

non profit educational institutions for 
chemical or physical analysas, bench 
scale exp e rimentation or training, or 
instruction; or 

(iii) bench-scale experimentation, 

chemical or physical analyses, train- 
ing or instruction from hospitals or 
health laboratories pursuant to the 
determination or diagnoses of ill- 
nesses; or laboratop i ' equipment used 
for chemical or physical analysis for 
bench scal e e xp e rimentation, train 
ing, instruction, or — research and 
development that is not required to 
b e p e rmitt e d under S e ction .0500 of 
this Subchapt e r; 

fiv) research and development laboratory 
activities that are not required to be 
permitted under Section .0500 of this 
Subchapter provided the activity 
produces no commercial product or 
feedstock material; 

(D) storage tanks: 

(i) storage tanks used solely to store 
fuel oils, kerosene, diesel, crude oil, 
used motor oil, lubricants, cooling 
oils, natural gas^ £as or liquefied 
petroleum gas; 

(ii) storage tanks used to store gasoline 
for which there are no applicable 
requirements except Stage I controls 
under 15A NCAC 2D .0928; 

(iii) storage tanks used solely to store 
inorganic liquids; or 

(iv) storage tanks or vessels used for the 
temporary containment of materials 
resulting from an emergency re- 
sponse to an unanticipated release of 
hazardous materials; 

(E) combustion and heat transfer equipment: 

(i) space heaters burning distillate oil. 
kerosene, natural gas, or liquefied 
petroleum gas operating by direct 
heat transfer and used solely for 
comfort heat; 

(ii) residential wood stoves, heaters, or 



fireplaces; 
(iii) hot water heaters which are used for 
domestic purposes only and are not 
used to heat process water; 

(F) wastewater treatment processes: industrial 
wastewater treatment processes or munici- 
pal wastewater treatment processes for 
which there are no applicable requirements; 

(G) gasoline distribution: 

(i) gasoline service stations or gasoline 
dispensing facilities that are not re- 
quired to be permitted under Section 
.0500 of this Subchapter; or 
(ii) gasoline dispensing equipment at 
facilities required to be permitted 
under Section .0500 of this Sub- 
chapter if the equipment is used 
solely to refuel facility equipment: 
(H) dispensing equipment: equipment used 
solely to dispense diesel fuel, kerosene, 
lubricants or cooling oils; 
(D solvent recycling: portable solvent distil- 
lation systems used for on-site solvent 
recycling if: 

ii) The portable solvent distillation 
system is not: 

(D owTied by the facility, and 
(IF) operated at the facility for 
more than seven consecutive 
days; 
(ii) The material recycled is: 

(D recycled at the site of origin. 
(ID the original material is non- 
photochemically reactive m 
accordance with ISA NCAC 
2D .0518. Miscellaneous 
Volatile Organic Compound 
Emissions, and 
(ITT) all make up material is non- 
photochemically reactive in 
accordance with 15A NCAC 
2D .0518; 
processes: 
(i) small electric motor bum-out ovens 
with secondary combustion chambers 
or afterburners; 
small electric motor bake-on ov- 



m 



ill) 

iiii) 

iiv) 



M 



ens; 

burn-off ovens for paint-line hang- 
ers with afterburners; 

hosiery knitting machines and associ- 
ated lint screens, hosiery dryers and 
associated lint screens, and hosiery 
dyeing processes where bleach or 
solvent dyes are not used; 
blade uood planers planing only 
green wood; 



352 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



PROPOSED RULES 



(K) (H) miscellaneous: 

(i) motor vehicles, aircraft, marine 
vessels, locomotives, tractors or 
other self-propelled vehicles with 
internal combustion engines; 
(ii) non-self-propelled non-road engines, 
except generators, regulated by rules 
adopted under Title 11 of the federal 
Clean Air Act; 
(iii) (it) equipment used for the prepara- 
tion of food for direct on-site human 
consumption; 
(iv) {Hi) a source whose emissions are 
regulated only under Section 112(r) 
or Title VI of the federal Clean Air 
Act that is not required to be permit- 
ted under Section .0500 of this Sub- 
chapter; 
(v) (iv) exit gases from in-line process 

analyzers; 
(vi) (v) stacks or vents to prevent escape 
of sewer gases from domestic waste 
through plumbing traps; 
(vii) (vi) refrigeration equipment that is 
consistent with Section 601 through 
618 of Title VI (Stratospheric Ozone 
Protection) of the federal Clean Air 
Act, 40 CFR Part 82, and any other 
regulations promulgated by EPA 
under Title VI for stratospheric 
ozone protection, except those units 
used as or in conjunction with air 
pollution control equipment; 
(viii) (vii) equipment not vented to the 
outdoor atmosphere with the excep- 
tion of equipment that emits volatile 
organic compounds; 
(ix) (viii) equipment that does not emit 

any regulated air pollutants; ep 
(x) facilities subject only to a require- 
ment under 40 CFR Part 63 that 
are not required to be p ermitted 
under Section .0500 of this Sub- 
chapter (This Subpart does not 
apply when a control device is 
used to meet a MACT or GACT 
emission standard.); or 
(xi) (i*) sources for which there are no 
applicable requirements and that are 
at a facility not required to be per- 
mitted under Section .0500 of this 
Subchapter. 
(2) activities exempted because of size or production 
rate (These activities shall not be included in the 
permit. If the facility is subject to the permitting 
procedures under Section .0500 of this Subchap- 
ter, these activities shall be listed on the permit 



applications; otherwise, these activities shall not 
be listed on the permit applications.): 

(A) storage tanks: 

(i) above-ground storage tanks with a 
storage capacity of no more than 
1100 gallons storing organic liquids 
liquids, — e xcluding — hazardous — aif 
pollutants, with a true vapor pres- 
sure of no more than 10.8 pounds 
per square inch absolute at 70°F; or 
(ii) underground storage tanks with a 
storage capacity of no more than 
2500 gallons storing organic liquids 
liquido, — e xcluding — hazardous — aif 
pollutontB. with a true vapor pres- 
sure of no more than 10.8 psi abso- 
lute at 70°F; 

(B) combustion and heat transfer equipment: 

(i) fuel combustion equipment, except 
for internal combustion engines, 
firing exclusively kerosene. No. 1 
fuel oil. No. 2 fuel oil, equivalent 
unadulterated fuels, or a mixture 
of these fuels or one or more of 
these fuels mixed of with natural 
gas or liquefied petroleum gas with 
a heat input of less than: 
(D 10 million BTU per hour for 
which construction, modifi- 
cation, or reconstructed 
commenced after .lune 9^ 
1989: or 
(ID 30 million BTU per hour for 
which construction, modifi- 
cation, or reconstruction 
commenced before .lune 10. 
1989; 
fuel combustion equipment, except 
for internal combustion e ngine s , 
for wh i ch construction, modifica - 
tion, or reconstruction commenced 
after June 9, 19 8 9, firing cxclu 
s ivc l y Itcro s cnc, No. 1 fuel oil, No. 
2 fuel oil, equivalent unadulterated 
fuels, natural gas, liquefied pctro 
Icum gas, or a mixture of the s e 
fuels with a heat input rating le ss 
than 10 million BTU per hour; 
(ii) fuel combustion equipment, except 
for internal combustion engines, 
firing exclusively natural gas or 
liquefied petroleum gas or a mix- 
ture of these fuels with a heat in- 
put rating less than 65 million 
BTU per hour; 

fuel combustion equipment, except 
for internal combu s tion engine s . 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



353 



PROPOSED RULES 



(iii) 



(iv) 



£v} 



m- 



for which construction, modifica 
tion, or reconstruction commenced 
before June 10, 19 8 9, firing exclu - 
s ively: 

^ kero s ene. No. 1 fuel oil. No. 

2 fuel oil, equivalent un 
adulterated fuel s , or a mix 
ture of the s e fuels with gas - 
eous fuels with a heat input 
rating le ss than 30 million 
BTU per hour; 
natural gas or liquefied pe - 
troleum gas with a — beat 
input rating le s s than 65 
million BTU per hour; 
space heaters burning waste oil if: 
(1) The heater bums only oil that 
the owner or operator gener- 
ates or used oil from 
do-it-yourself oil changers 
who generate used oil as 
household wastes: 
(II) The heater is designed to have 
a maximum capacity of not 
more than 500,000 Btu per 
hour: and 
(m) The combustion gases from 
the heater are vented to the 
ambient air; 
emergency use generators and other 
internal combustion engines not reg- 
ulated by rules adopted under Title 
II of the federal Clean Air Act, ex- 
self-propelled vehicles, that 
a rated capacity.' of no more 



cept 
have 
than: 

a) 



310 kilowatts (electric) or 
460 horsepower for natural 
gas-fired engines, 
(II) 830 kilowatts (electric) or 
1150 horsepower for liquefied 
petroleum gas-fired engines, 

(III) 270 kilowatts (electric) or 

410 horsepower for die- 
sel-fired or kerosene-fired 

e ngin e s: engines, or 
qV) 21 kilowatts (electric) or 31 

horsepower for gasoline-Fired 

engines: 
portable generators and other porta- 
ble e-quipment v.ith internal combus- 
tion engines not regulated by rules 
adopted under Title 11 of the federal 
Clean Air Act, except self-propelled 
vehicles, that operate at the facility 
no more than a combined 350 hours 



for any 365-day period provided the 
generators or engines have a rated 
capacity of no more than 750 kilo- 
watt (electric) or 1 1(X) horsepower 
each and provided records are main- 
tained to verify the hours of opera- 
tion: 

peak shaving generators that pro- 
duce no more than 325.000 
kilowatt-hours of electrical energy 
for any 12-month period provided 
records are maintained to verify 
the energy production on a 
monthly basis and on a 12-month 
basis: 

(C) gasoline distribution: bulk gasoline plants 
with an average daily throughput of less 
than 4000 gallons that is not required to be 
permitted under Section .0500 of this Sub- 
chapter; 

(D) processes: 

(i) printing, paint spray booths or other 
painting or coating operations with- 
out air pollution control devices 
(water v^ash and filters that are an 
integral part of the paint spray booth 
are not considered air pollution con- 
trol devices) located at a facility 
whose facilitv'-wide actual emissions 
of: 

(D (+) Volatile organic com- 
pounds are less than five tons 
per year, and 
(H) fii) Photocheinically reactive 
solvent emissions under 15A 
NCAC 2D .0518 are less than 
40 30 pounds per day; 
provided the facility is not required 
to be fjermitted under Section .0500 
of this Subchapter. Subchapter: 
(ii) saw mills that saw no more than 
2.000.000 board feet per year pro- 
vided onh' green wood is sawed; 
(iii) perchloroeth\ lene dry cleaners that 
consume less than 13.000 pounds 
(965 gallons) of perchloroethvlene 
per year; 
(iv) electrostatic dr\ powder coating 
operations equipp ed with powder 
recovery including curing ovens 
with a beat input of l^s than 
10.000.000 BTU per hour: 

(E) miscellaneous: 

(i) any source without an air pollution 
control device whose potential emis- 
sions of particulate, sulfur dioxide, 
nitrogen oxides, volatile organic 



354 



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11:6 



PROPOSED RULES 



compounds, and carbon monoxide 
are each no more than five tons per 
year and whose potential emissions 
of hazardous air pollutants are below 
their lesser quantity cutoff with a 
potential to e mit no more than fiv e 
tone per year of e ach regulat e d pol 
lutant that is not a hazardous air 
pollutant and whooo omiBsions would 
not violate any applioablo e miooiono 
standard and whooo omiooiono of all 
hazardous air poUutonta are bolow 
thoif roopcxitivo lessor quality' cutoff 
omiooion rates in 10 CFR Part 63; 
except: 

(I) storage tanks. 
(H) fuel combustion equipment 
firing exclusively kerosene. 
No. 1 fuel oil. No. 2 fuel oil, 
equivalent unadulterated 
fuels, natural gas, liquefied 
petroleum gas, or a mixture 
of these fuels. 
(TTI) space heaters burning waste 

oil. 
(IV) generator s generators, ex- 
cluding emergency genera- 
tors, or other non-self-pro- 
pelled internal combustion 
engines. 
(V) bulk gasoline plants, 
(VD printing, paint spray booths. 
or other painting or coating 
operations. 
(VII) saw mills. 
(VIID perchloroethylene dry 

cleaners, or 
(IX) electrostatic dry powder 

coating operations. 
provided that the total potential 
emissions of particulate, sulfur diox- 
ide, nitrogen oxides, volatile organic 
compounds, and carbon monoxide 
from the facility are each less than 
40 tons per year and the total poten- 
tial emissions of all hazardous air 
pollutants are below their lesser 
quantity cutoff emission rates or 
provided that the facility has an air 
quality permit; 
(ii) any facility without an air pollution 
control device whose actual emis- 
sions of particulate, sulfur dioxide, 
nitrogen oxides, volatile organic 
compounds, or carbon monoxide are 
each less than five tons per year, 
whose potential emissions of all 



hazardous air pollutants are below 
their rospoctivo lesser quality quan- 
tity cutoff emission rates in 4 CFR 
Part 63 , and which is not required to 
have a permit under Section .0500 of 
this Subchapter; 
(iii) emissions of any hazardous air pol 
lutant where the omifloiono from the 
faoilit)' of that hazardous air pollut 
ant is below its lessor quality cutoff 
emission rote in 40 CFR Part 63 any 
source that only emits hazardous air 
pollutants that are not also a particu- 
late or a volatile organic compound 
and whose potential emissions of 
hazardous air pollutants are below 
their lesser quantity cutoff emission 
rates; or 
%^ — electro s tatic dry powder coating 
operations equipped with powder 
recover)' including curing ovens 
with a heat input of le ss than 
10,000,000 BTU per hourj or 
(iv) fv) any incinerator covered under 
Paragraph (d) of 15A NCAC 2D 
.1201. 
(F) case-by-case exemption: activities that the 
applicant demonstrates to the satisfaction of 
the Director to be negligible in their air 
quality impacts, not to have any air pollu- 
tion control device, and not to violate any 
applicable emission control standard when 
operating at maximum design capacity or 
maximum operating rate, whichever is 
greater. 

(c) Because an activity is exempted from being required 
to have a permit does not mean that the activity is exempted 
from any applicable requirement or that the owner or 
operator of the source is exempted from demonstrating 
compliance with any applicable requirement. 

(d) Emissions from stationary source activities identified 
in Paragraph (b) of this Rule shall be included in determin- 
ing compliance with the toxic air pollutant requirements 
under 15A NCAC 2D .1100or2H .0610. 

(e) The owner or operator of a facility or source claiming 
an exemption under Paragraph (b) of this Rule shall provide 
the Director documentation upon request that the facility or 
source is qualified for that exemption. 



Authority G.S. 
143-215. 108. 



143-215. 3(a)(1); 143-215. 107(a)(4); 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Resources 
Commission intends to amend rule(s) cited as 15A NCAC 



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355 



PROPOSED RULES 



1 OF .0303 and .0310. Text shown in italics as 15 A NCAC 
lOF .0310(13) was previously noticed in Volume 11, Issue 
1, of the Register . 

Proposed Effective Date: March 2, 1997 

A Public Hearing will be conducted at 10:00 a.m. on July 
10, 1996 at the Archdale Building, Room 332, 512 N. 
Salisbury Street, Raleigh, NC 27604. 

Reason for Proposed Action: To regulate boat speeds in 
congested areas 

Comment Procedures: Interested persons may present their 
views either orally or in viTiting at the hearing. In addition, 
the record of hearing will be open for receipt of written 
comments from June 14, 1996 through July 15, 1996. Such 
written comments must be delivered or mailed to the North 
Carolina Wildlife Resources Commission, 512 North Salis- 
bury Street, Raleigh, North Carolina 27604-1188. 

Fiscal Note: This Rule does not ajfea the expenditures or 
revenues of state or local government funds. These rules do 
not hax'e substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

CHAPTER 10 - VVILDLffT: RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0303 BEAUFORT COUNTY 

(a) Regulated Areas. This Rule applies to the following 
waters in Beaufort County: 

(1) that portion of Broad Creek bounded on the north 
by a Line running due east and west across Broad 
Creek through a point 1400 feet due north of Red 
Marker No. 6, on the south by a line running east 
and west across Broad Creek through the location 
of Red Marker No. 4, on the east and west by the 
high-water mark on Broad Creek: 

(2) that portion of Blounts Creek 100 yards on either 
side of the SR 1112 Bridge; 

(3) that portion of Blounts Creek beginning 100 yards 
below the Old Crist Landing and extending up- 
stream to the NC 33 bridge; 

(4) the waters of Battalina Creek, within the territo- 
rial limits of the Town of Belhaven; 

(5) the navigable portion of Nevils Creek extending 
upstream from its mouth at the Pamlico River; 

(6) that jxirtion of the Pamlico River within 50 yards 
either side of the US Highway 17 bridge and the 



Norfolk Southern Railroad bridge and that portion 
lying within 50 yards of the northern Shoreline 
and within the city limits of Washington, North 
Carolina, connecting the two bridges and desig- 
nated by appropriate markers, markers; and 
(7) that portion of Blounts Creek beginning 50 yards 
on the south side and three hundred yards on the 
north side of the Blounts Creek Bridge. 

(b) Speed Limit. It is unlawful to operate a vessel at 
greater than no-wake speed in the regulated areas described 
in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. The Board 
of Commissioners of Beaufort County and the City Council 
of the City of Washington are designated as suitable agen- 
cies for placement and maintenance of the markers imple- 
menting this Rule. 

Authority G.S. 75A-3: 75A-15. 

.0310 DARE COUNTY 

(a) Regulated Areas. This Rule applies to the following 
waters and portions of waters: 

(1) Manteo. Doughs Creek adjacent to Shallowbag 
Bay and all canals situated within the territorial 
limits of the Town of Manteo. 

(2) Hatteras. The waters of Hatteras Harbor and 
Muddy Creek bounded on the north and south by 
the high-water mark, on the west by a straight 
line between channel markers number 20 and 17, 
and on the east by the mouth of Muddy Creek at 
Sandy Bay. 

(3) Mann's Harbor. The waters of Ferry Dock Road 
Canal. 

(4) Nags Head: 

(A) Those waters contained within the canals of 
Old Nags Head Cove Development; 

(B) The Roanoke Sound inlets at Pond Island 
on either side of Marina Drive extending 
north from US 64-264. 

(5) Wanchese: 

(A) The waters of Wanchese Harbor; 

(B) The Canal from its beginning where it 
connects with the Roanoke Sound south of 
the dead end road SR 1141 extending 
northwest roughly parallel to SR 1141 and 
SR 1142, then westward roughly parallel to 
NC 345, and finally curving to the south- 
west roughly parallel to the C.B. Daniels 
Road to its end. 

(6) Stumpy Point Canal. That portion of Stumpy 
Point Canal beginning at the Wildlife Resources 
Commission boating access area and extending 
inland for a distance of 3,600 feet. 

(7) Stumpy Point Basin. That portion of the Stumpy 
Point Basin, at the head of the Stumpy Point Bay, 
which is next to Highway 264 in the dock area 
and designated by the appropriate markers. 



356 



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11:6 



PROPOSED RULES 



(8) Town of Southern Shores. The waters contained 
in the canals and lagoons within the territorial 
limits of the Town of Southern Shores. 

(9) Colington Harbour. The waters contained in the 
canals of Colington Harbour. 

(10) Kitty Hawk. Those waters contained in the canals 
of Kitty Hawk Landing Subdivision. 

(11) Washington Baum Bridge. Those waters of the 
Roanoke Sound from marker 24B north of the 
bridge to marker 24A south of the bridge, and 50 
yards east of the navigation span west to the shore 
as designated by the appropriate markers. 

(12) Colington Island. The waters contained in an area 
beginning at the bath house and recreation center 
on the western shore of Colington Island, running 
600 feet in a northerly direction and extending 
300 feet into Albemarle Sound as marked. 

(13) The waters of Baum Bay Harbor. 

(14) The waters of High Bridge Creek. 

(b) Speed Limit. No person shall operate any motorboat 
or vessel at greater than no-wake speed within any of the 
regulated areas described in Paragraph (a) of this Rule. 

(c) Restricted Swimming Area. No person operating or 
responsible for the operation of any vessel, surfboard, water 
skis, or jet skis shall permit the same to enter any marked 
swimming area described in Subparagraph (12) of Paragraph 
(a) of this Rule. 

(d) Placement and Maintenance of Markers. Subject to 
the approval of the United States Coast Guard and the 
United States Army Corps of Engineers, the following 
agencies are designated suitable agencies for placement and 
maintenance of markers implementing this Rule as to the 
regulated areas listed in the several Subparagraphs of 
Paragraph (a) of this Rule: 

(1) the Board of Commissioners of the Town of 
Manteo as to the areas indicated in Subparagraph 

(1); 

(2) the Board of Commissioners of Dare County as to 
the areas indicated in Subparagraphs (2) through 
(7), (9) and (11); 

(3) the Board of Commissioners of the Town of 
Southern Shores as to the areas indicated in 
Subparagraph (8); 

(4) the Board of Commissioners of the Town of Kitty 
Hawk as to the areas indicated in Subparagraph 
(a)(10). 

Authority G.S. 75A-3; 75A-15. 



:jc :{c Ne 4( 4 



Notice is hereby given in accordance with G.S. 
1508-21. 2 that the EHNR - Commission for Health 
Services intends to adopt rules cited as 15A NCAC 13C 
.0301 - .0308. 

Proposed Effective Date: April 1, 1997. 



A Public Hearing wM be conducted at 2:00 pm on July 1 , 
1996 at the Ground Floor Hearing Room, Archdale Build- 
ing, 512 N. Salisbury Street, Raleigh, NC. 

Reason for Proposed Action: The Inactive Hazardous Sites 
Response Act was amended in the 1994 and 1995 legislative 
sessions to establish a mechanism for privatizing the State's 
oversight role at voluntary party cleanups. The amendments 
call for establishing rules to set up (1) standards applicable 
to the private overseers, (2) criteria for state approval of 
these overseers, (3) requirements for state auditing of the 
cleanup, (4) requirements for final assurances to be made by 
remediating parties and (5) requirements for maintenance of 
public records. 

Comment Procedures: All persons interested in these 
matters are invited to attend the public hearing. Written 
comments may be presented at the public hearing or submit- 
ted to Leslie Brown, Assistant Director, Division of Health 
Promotion, Post Office Box 27687, Raleigh, NC, 27611- 
7687. All written comments must be received by August 1 , 
1996. Persons who wish to speak at the hearing should 
contact Mr. Brown at (919) 715-3105. Persons who call in 
advance of the hearing will be given priority on the 
speaker's list. Oral presentation lengths may be limited 
depending on the number of people that wish to speak at the 
public hearing. Only persons who have made comments at 
a public hearing or who have submitted written comments 
will be allowed to speak at the commission meeting. 
Comments made at the Commission meeting must either 
clarify previous comments or proposed changes from staff 
pursuant to comments made during the public hearing 
process. 

ms VERY IMPORTANT THAT ALL INTERESTED AND POTEN- 
TIALLY AFFECTED PERSONS, GROUPS, BUSINESSES, ASSOCI- 
ATIONS, INSTITUTIONS OR AGENCIES MAKE THEIR VIEWS 
AN OPINIONS KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBUC HEARING AND COMMENT 
PROCESS. WHETHER THEY SUPPORT OR OPPOSE ANY OR 
ALL PROVISIONS OF THE PROPOSED RULES. THE COMMIS- 
SION MA Y MAKE CHANGES TO THE RULES AT THE COMMIS- 
SION MEETING IF THE CHANGES COMPLY WITH G.S. 150B- 
21.20. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government finds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 13 - SOLID WASTE MANAGEMENT 

SUBCHAPTER 13C - INACTIVE HAZARDOUS 
SUBSTANCES AND WASTE DISPOSAL SITES 

SECTION .0300 - VOLUNTARY REMEDIAL 

ACTION OVERSIGHT BY REGISTERED 

ENVIRONMENTAL CONSULTANTS 



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357 



PROPOSED RULES 



.0301 DEFUSnTIONS 

Any word or phrase used in these Rules which is defined 
in G.S. 130A. Article 9 shall have the meaning provided 
therein. The following words and phrases shall have the 
following meanings: 

(1) "Applicant" means an environmental consulting or 
engineering firm seeking Department approval to 
act as a Registered Environmental Consultant. 

(2) "Applicant RSM" means an individual proposed 
by an applicant to fill the role of Registered Site 
Manager. 

(3) "Registered Environmental Consultant" or "REC" 
means an environmental consulting or engineering 
firm approved to implement and oversee voluntary 
remedial actions pursuant to G.S. 130A-310.9(c). 

(4) "Registered Site Manager" or "RSM" means the 
key person or persons approved by the Division 
of Solid Waste Management to manage all site 
activities and make certifications on behalf of the 
Registered Environmental Consultant in its role as 
consultant to responsible parties for implementa- 
tion and oversight of a voluntary remedial action 
pursuant to G.S. 130A-310.9(c). 

(5) "Remediating Party" means any site owner, 
operator, or responsible party engaging in a 
voluntary remedial action pursuant to G.S. 130A- 
310.9(c). 

(6) "Request for Approval" means the application and 
qualifications documentation package which must 
be submitted by an environmental consulting or 
engineering firm to the Department so that the 
Department may determine an applicant's eligibil- 
ity to operate as a Registered Environmental 
Consultant. TTie Department will make available 
a format for submission of such information. 

(7) "Source Area" means any area of sludge, soil, 
sediment, or other solid medium contaminated by 
a release of one or more hazardous substances. 

(8) "Voluntary Remedial Action" is a remedial action 
as defined in G.S. 130A-310(7) conducted volun- 
tarily by an owner, operator, or responsible party 
and undertaken with the approval of the Depart- 
ment pursuant to G.S. 130A-3 10.9(c). 

Authority G.S. 130A-3W. 12(b). 

.0302 GENERAL PROVISIONS 

(a) These are the rules required by G.S. 130A-310. IZfb) 
to gpyem the selection and use of private environmental 
consulting and engineering firms to implement and oversee 
voluntary remedial actions by owners, operators, or other 
responsible parties under G.S. 130A-310.9(c). 

(b) No provision of these Rules shall be construed to 
relieve any person of the necessity of complying with 



provision of this 



applicable federal . state or local laws, 
(c) Any person who violates an 



Section, or any other requirement in connection with the 
voluntary remedial action program, including making any 
false statement, representation or certification, or knowingly 
rendering inaccurate any recording or monitoring device or 
method, shall be subject to enforcement to the full extent of 
the law. Such enforcement may include, without limitation, 
disqualification as an REC or RSM and prosecution under 
G.S. 130A-26.2. 

(d) A party wishing to conduct a voluntary remedial 
action must enter into a written agreement with the Depart- 
ment pursuant to G.S. 130A-310.9(c). 

(e) For the purpose of administration and enforcement of 
the voluntary remedial action program and for protection of 
human health or the environment, employees, agents and 
contractors of the Department may enter any site, vessel or 
other location undergoing a voluntary remedial action 
pursuant to this Section, at reasonable times and upon 
reasonable notice, to investigate, sample or inspect any 
documents, conditions, equipment, practice or property. In 
the event that the Department reasonably determines as a 
result of an investigation, sampling or inspection that there 
has been a release or that there exists a threat of release of 
a hazardous substance, the Department may enter a site. 
vessel or location, and areas proximate thereto, and perform 
or arrange for the performance of such response actions as 
it reasonably deems necessary. 

(fj Remedial Actions conducted pursuant to this Section 
must be overseen by an REC. All work performed by mi 
REC must be under the supervision and direction of m 
RSM representing the REC. Rule .0306 of this Section 
specifies requirements relating to certifications by RSMs. 

(g) TTie Department shall have complete discretion to 
effect cleanup itself, or directly oversee a remediating 
party's cleanup, if the Department determines that the site 
poses an imminent hazard, if there is significant public 
concern, if the Department has initiated an enforcement 
action, if the Department is concerned about material 
misrepresentations or environmental non-compliance on the 
part of a party seeking to effect or effecting remedial action 
at a site pursuant to this Section, if hazardous substances 
have migrated to adjoining property, or if other conditions, 
such as the presence of sensitive environments or mixed 
wastes (commingled radioactive and chemical wastes), so 
warrant. 

£h] The remedial investigation must be completed within 
three years of the effective date of the agreement to conduct 
a voluntary remedial action. Non-groundwater remedial 
action must be completed within eight years of the effective 
date of that agreement. Groundwater remedial action must 
be initiated within two years of completion of the remedial 
investigation. Responsible parties failing to meet these 
deadlines will be subject to enforcement and loss of ap- 
proved voluntary remedial action status. The affected sites 
will no longer be eligible for exemption from the Inactive 
Hazardous Waste Sites Priority List pursuant to G.S. 130A- 
310.9(b). 

(iJ Any information, document, or particular part thereof 



358 



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June 14, 1996 



11:6 



PROPOSED RULES 



obtained by the Department or its contractors upon request 
pursuant to this Section shall be confidential, and shall not 
be considered to be a public record, when it is determined 
by the Department that such information, if made public, 
would divulge a trade secret. 

(j) The Department shall be under no obligation to act 
upon any request for confidentiality in relation to this 
Section that is not made and substantiated in accordance 
with G.S. 66. Article 24, and such information may be 
made available to the public by the Department without 
further notice to the remediating party. 

(k) These Rules may not serve as grounds for refusal to 
disclose any information necessary for an enforcement or 
cost recovery action or to comply with any provision of law. 

(1} The REC shall preserve and maintain all documents 
submitted to the REC on behalf of or by the remediating 
party, prepared by the REC, or within the REC's posses- 
sion, custody or control, that in any way relate to work 
performed pursuant to these Rules including, but not limited 
to. documents of sufficient detail to substantiate the facts, 
data, conclusions and other information set forth in any 
REC opinion or certification. Such documents shall be kept 
at one or more locations reasonably accessible to the 
Department and in such a form as to enable the Department 
to ascertain whether the response actions which are the 
subject of the REC opinion or certification have been 
performed in compliance with the provisions of these 
voluntary remedial action Rules until such time as the record 
is provided to the Department for the public file. The REC 
shall submit to the Department for the public file all work 
plans, records, and reports within 30 days of their comple- 
tion. TTie REC shall submit to the Department for the 
public file all site documents at the following milestones: 

(1) completion of each phase of the remedial investi- 
gation; 

(2) REC approval of cleanup levels: 

(3) completion of the remedial investigation; 

(4) at the close of the 30-day public comment period 
which follows notice of the proposed remedial 
action plan; 

(5) completion of remedial design and construction; 
and 

(6) completion of all remedial action activities. 

(m) Any person required by Paragraph (1) of this Rule to 
preserve and maintain any documents shall preserve and 
maintain those documents for six years after termination of 
the remediating party's agreement with the Department to 
perform a voluntary remedial action pursuant to these Rules. 
With the Department's written approval, documents required 
to be maintained need no longer be maintained. 

(n} Failure to comply with Department site-related 
requests for information will cause revocation of an REC's 
approval to perform work and disapproval of any work 
product in question. Remediating parties will lose their 
eligibility for the voluntary remedial action program unless, 
within 60 days of notice by the Department of revocation of 
the REC's approval, the name of a successor REC is 



submitted to ttie Etepartment. Program ineligibility will also 
result from failure by a remediating party to provide written 
notice to the Department within 60 days of a change in 
RECs for any other reason. 

(o) Nothing in this Section shall be construed to limit the 
Department's authority to take or arrange, or to require a 
responsible party to perform, any response action which the 
Department deems necessary to protect public health, safety 
or welfare or the environment. 

(p) Nothing in this Section shall be construed to imply 
authorization by the Department to any person other than the 
Department, or the Department's employees, agents or 
contractors, to enter any property not owned by him or her 
to carry out a response action, or otherwise injure or 
interfere with any other person's rights or interests in real 
or personal property, without that person's consent. After 
making reasonable efforts to obtain reasonable access to any 
site or other location to be investigated as a possible site not 
owned by the remediating party, an REC or remediating 
party who is unable to obtain such access may request, in 
writing, that the Department authorize him or her, or his or 
her employees, agents, representatives or contractors, to 
enter such site or location for the purpose of performing one 
or more necessary response actions. Each such request for 
authorization shall include all of the following information: 

(1) the identity of the person making the request and 
his or her relationship to the site or location; 

(2) the nature and location of the actions(s) that he or 
she intends to undertake, the anticipated duration 
of the action(s) and the reasons(s) such access is 
(are) necessary to perform the action(s); 

(3) the identity of each person who owns or operates 
the site or location to which access is sought; 

(4) the results of any and all attempts to obtain such 
access; and 

(5) certification that a copy of the request has been 
sent to each person who owns or operates such 
sites or locations. 

Authority G.S. 130A-3 10. 12(b); 130A-310.1(c); 130A- 
310.1(e); 130A -310.3(c); 130A-3 10.5(a); 130A-310.6; 132. 

.0303 APPROVAL OF REGISTERED 

ENVIRONMENTAL CONSULTANTS 

(a) To qualify for Department approval as an REC, an 
applicant must complete and submit a sworn Request for 
Approval form, available from the Department, demonstrat- 
ing that the applicant meets the requirements contained in 
this Section. The Request for Approval form must set forth 
the qualifications of all persons the applicant wishes to 
qualify as RSMs. 

(b) Applicants must supply the names and telephone 
numbers of previous government and industry clients and 
copies of actual work products to verify experience, if 
requested by the Department. The Department may require 
applicants to su pply additional information to clarify that 
provided on the Request for Approval form. Those appli- 



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359 



PROPOSED RULES 



cants not complying with such requests will not be approved 
to perform work pursuant to these Rules. 

(c) An REC must promptly notify the Department if the 
nature of its business changes, if it no longer meets the 
requirements for approval under this Section due to change 
in personnel, or for any other reason, or jf it discovers that 
any information it submitted in any Request for Approval is 
or was incorrect. 

(d) Should a Department-approved RSM leave the 
employment of an REC or change employment within an 
REC, an REC must, no later than 30 days prior to the 
change, submit the name and qualifications of another 
person to perform the role of the RSM. If an REC does not 
receive 30 days notice by an RSM of the RSM's intended 
change in employment, the REC must notify the Department 
within 24- hours of the RSM providing such notice and 
within 30 days of the RSM's notice to the REC, submit to 
the Department the name and qualifications of another 
person to perform the role of the RSM. TTie Department 
shall determine whether the proposed replacement qualifies 
as an RSM. An REC may propose amendments to its 
approval as an REC to add or delete RSMs. 

(e) TTie Department will notify applicants in writing 
whether they are approved to conduct business as an REC. 
No applicant may represent itself, or work, as an REC 
without written Department approval. 

(f) An REC's approval will be valid for five years unless 
revoked earlier by the Department. 

(g) TTie Department shall make available to the general 
public a list of all approved RECs. 

Authority' G.S. 130A-310. 12(h). 

.0304 MINIMUM QUALIFICATIONS FOR 
REGISTERED ENVIRONMENTAL 
CONSULTANTS 

In order to be approved to perform work as an REC, an 
environmental consulting or engineering firm must meet the 
follow ing requirements. 

( 1 ) REC applicants must demonstrate that one or 
more persons in their employ individually meet all 
of the follou ing standards and requirements and 
therefore qualify to perform the role of RSM for 
the REC. To qualify as an RSM, an individual 
must: 

(a) Have the following minimum relevant 
professional experience: 
(i) five years experience in investigation 
and remediation of hazardous sub- 
stance or waste disposal sites; 
(ii) three years direct experience in su- 
pervising site investigation and reme- 
dial action projects; and 
(iii) eight years of total relevant profes- 
sional experience, which must be 
work of a professional grade and 
character performed for a minimum 



£b) 



i£l 



average of 20 hours per week that 
indicates the applicant is competent 
to render waste site cleanup activity 
opinions. Total relevant professional 
experience performed for less than a 
minimum average of 20 hours per 
week will be applied toward the 
satisfaction of these requirements on 
a ££0 rata basis. If an individual 
works more than 40 hours in a 
week, even if having multiple jobs, 
that individual can get credit only for 
one week's worth of work. The 
Department will consider the follow- 
ing criteria in evaluating whether an 
applicant RSM's waste site cleanup 
decision-making experience and 
practical experience constitute suffi- 
cient relevant experience: the nature 
of work activities; the field of work 
activities; the types of reports, stud- 
ies and documents prepared; the 
range of methods evaluated and se- 
lected; the number of individuals and 
disciplines of other professionals 
supervised or coordinated; the extent 
of review of conclusions, recommen- 
dations and opinions by supervisors; 
the duration of employment; and any 
other factors the Department deems 
pertinent. 
Have sufficient training to meet the hazard- 
ous waste operations and emergency re- 
sponse training standard, 29 CFR 
1910.120. 

Have a four-year or graduate degree from 
a college or university accredited by a 
regional accrediting agency in one of the 
following fields (degrees in related scien- 
tific fields will be considered on a case by 
case basis): 
(i) Biochemistry; 
Biology; 

Chemical Engineering; 
Chemistry; 
Civil Engineering; 
Earth Science; 



(iil 

(iii) 

(iy) 
(yl 

[vi] 

(vii) 

lyiii] 

(ix) 

ix) 

(xi) 

(xii) 

(xiii) 

(xjy) 

(XV} 

(xvij 



Environmental Engineering: 

Environmental Science; 

Epidemiology; 

Geochemistry; 

Geological Engineering; 

Geology; 

Geophysics; 

Geotechnical Engineering; 

Hydrogeology; 

Hs'drologv; 



360 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



PROPOSED RULES 



(xvii) Industrial Hygiene; 
(xviii") Mechanical Engineering; 
(xix) Physics; 
(xx) Soil Science; and 
(xxi) Toxicology. 
(d) Haye a record of professionalism and 
integrity, demonstrated by the absence of: 
(i) conyiction of a felony: 
(ii) conyiction of a misdemeanor involy- 
ing fraud, deceit, misrepresentation 
or forgery: 
(iii) an adverse ciyil judgment in an ac- 
tion inyolyjng fraud, deceit, misrep- 
resentation, or forgery; 
(iv) disbarment or disciplinary action 
relating to any professional license; 
and 
(y) disqualification from goyemment 
contracts for negligent acts or failure 
to perform required work. 
(2) The applicant must demonstrate that it has an 
established environmental consulting practice. 

Authority G.S. 130A-3 10. 12(b). 

.0305 STANDARDS OF CONDUCT FOR 
REGISTERED ENVIRONMENTAL 
CONSULTANTS 

(a) The REC and its RSMs must comply with the 
following standards of professional competence. RECs 
failing to do so will be disqualified from performing work 
as an REC pursuant to this Section and will be subject to 
any other applicable form of enforcement. 

(1) An RSM shall render a waste site cleanup activity 
opinion only when he or she has directly reviewed 
the work to ascertain whether the completed work 
complies with with Section. 

(2) The RSM shall perform his or her services only 
in areas of his or her competence and shall not 
render a decision on any assessment or cleanup 
plan or document dealing with subject matter for 
which he or she lacks competence by virtue of 
education or experience. If a site assessment or 
cleanup activity opinion requires expertise outside 
the RSM's field of expertise, the RSM shall 
render such an opinion relying in part upon the 
advice of one or more professionals having rele- 
vant competence. 

(b) The REC and its RSMs must comply with the 
following standards of professional responsibility. RECs 
failing to do so will be disqualified from performing work 
as an REC pursuant to this Section and will be subject to 
any other applicable form of enforcement. 

(1) An REC shall at aM times recognize its primary 
obligation is to protect public health, safety and 
welfare and the environment in the performance 
of professional services as an REC. 



m 



Ql 



£4} 



If an REC acting pursuant to this Section identi- 
fies an imminent hazard at a site at which it is 
providing professional services pursuant to these 
Rules it shall, unless the REC is certain the 
remediating party has provided such notice, within 
24 hours of discovery, notify the Department: 

(A) of the hazard; 

(B) whether the remediating party has agreed to 
take corrective action; and 

(C) what action, if any, has been taken. 
If an REC acting pursuant to this Section deter- 
mines hazardous substances have migrated to 
property adjoining property containing a source 
area, or determines there are sensitive environ- 
ments or mixed wastes (comingled radioactive and 
chemical wastes) on the site, it shall, unless the 
REC is certain the remediating party has provided 
such notice, within 24 hours of discovery, notify 
the Department. 
In providing professional services all RSMs shall: 

(A) exercise independent professional judge- 
ment; 

(B) follow the requirements and procedures set 
forth in applicable provisions of this Sec- 
tion; and 

(C) act with reasonable care and diligence, and 
apply the knowledge and skill ordinarily 
required of RSMs in good standing in the 
State at the time the services are per- 
formed. 

(5) If, subsequent to the date an REC renders a waste 
site cleanup activity opinion, anyone employed by 
the REC that rendered the opinion learns that 
previously unconsidered facts, data or other 
information may support or lead to a different 
opinion, the REC shall promptly notify, in writ- 
ing, the remediating party and the Department. 

(6) If, subsequent to the date of its engagement, a 
successor REC learns of material facts, data or 
other information that existed as of the date of 
any predecessor RECs waste site cleanup activity 
opinion but was not disclosed in that opinion, the 
successor REC shall promptly notify, in writing. 
the remediating party and the Department. 

(7) An REC shall not allow the use of its name or the 
names of its RSMs by. or associate in a business 
venture with, any person or firm which an REC 
knows or should know is engaging in fraudulent 
or dishonest business or professional practices 
relating to the professional responsibilities of the 
REC. 

(8) The REC shall be objective and truthful in all 
professional reports, public statements or testi- 
mony, and shall include all relevant and pertinent 
information in the reports, statements, or testi- 
mony when the result of an omission would or 
reasonably could lead to a fallacious conclusion. 



, 11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



361 



PROPOSED RULES 



(9) An REC shall not falsifS' or permit misrepresenta- 
tion of an RSM's academic or professional quali- 
fications, and shall not misrepresent or exaggerate 
an RSM's degree of responsibiliry in, or for, the 
subject matter of prior assignments. 

(10) RECs must comply in good faith with any direc- 
tiye, regulation, policy or guidance of the Depart- 
ment. 

(11) All RECs are charged with haying knowledge of 
this Section. 

Authority G.S. 130A-3 10. 12(h). 

.0306 TECHNICAL STANDARDS FOR 

REGISTERED ENVIRONMENTAL 

CONSULTANTS £3} 

(a) The REC is charged with ensuring that all documents 
and plans comply with the remediating party's agreement 
with the Department and the Inactive Hazardous Sites 
Response Act and associated rules and guidance. 

£b) AU work phase completion statements, schedules, 
work plans, and reports require REC certification. An 
RECs certification must comply with the following: 

( 1 ) REC certification of any document requires 
inclusion of the followin g statement, signed by the 

RSM and notarized: (4) 

^ certify under penalty of 
law that I am personally fa- 
miliar with the information 
contained in this submittal, 
including any and all sup- 
porting documents accompa- 
nying this certification, and 
that the material and infor- 
mation contained herein is, 
to the best of my knowledge 

and belief, true, accurate, (5) 

complete and complies with 
the Inactive Hazardous Sites 
Response Act G.S. 130A- 
3 10, et seq. and the volun- 
tary remedial action pro- 
gram Rules 15A NCAC 13C 
.0300 and associated guid- 
ance. I am aware that there 
are significant penalties for 
willfully submitting false, 
inaccurate or incomplete 
information. " 

(2) TTie RSM shall certify only documents that con- (6) 
tain the following notarized declaration signed and 

dated by, and including the title of, the highest 
ranking official of the remediating party having 
day-to-dav responsibility for the performance of 
the response action which is the subject of the 
submittal: 

^ certify under penalty of law that 



I have personally examined and am 
familiar with the information con- 
tained in this submittal, including 
any and all documents accompany- 
ing this certification, and that, 
based on my inquiry of those indi- 
viduals immediately responsible for 
obtaining the information, the mate- 
rial and information contained 
herein is, to the best of my knowl- 
edge and belief, true, accurate and 
complete. I am aware that there 
are significant penalties for will- 
fully submitting false, inaccurate or 
incomplete information." 
Any work which would constitute the "practice of 
engineering" as defined by G.S. 89C must be 
performed under the responsible charge of, and 
signed and sealed by, a professional engineer 
registered in the state of North Carolina. Any 
work which would constitute the "public practice 
of geolog\" as defined b\' G.S. 89E must be 
performed under the responsible charge of, and 
signed and sealed by, a geologist licensed in the 
state of North Carolina. 

RSM certification of the following documents 
must occur prior to implementation: 

(A) remedial investigation work plans prepared 
in accordance with Paragraph (g) of this 
Rule: 

(B) remedial action plans prepared in accor- 
dance with Paragraph (!) of this Rule; 

(C) remedial action preconstruction reports 
prepared in accordance with Paragraph (m) 
of this Rule; and 

(D) any modifications of work schedules. 
The RSM must prepare certified completion 
statements for the following work phases and 
provide them to the Department at the times 
specified in Rule .0302(1) of this Section: 

(A) completion of phase I of the remedial 
investigation; 

(B) REC approval of cleanup levels: 

(C) completion of the remedial investigation; 

(D) REC approval of the proposed remedial 
action plan: 

(E) completion of the remedial design and 
construction; and 

(F) completion of all remedial action activities. 
RSM certification pursuant to the preceding 
paragraph must include the following statement 
signed by the RSM and notarized: 

"The, [insert work phase] which is 
the subject of this certification has, 
to the best of my knowledge, been 
completed in compliance with the 
Inactive Hazardous Sites Response 



362 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



PROPOSED RULES 



Act G.S. 130A-310, et seq. and the 
voluntary remedial action program 
Rules 15A NCAC .0300 of this 
Section, and associated guidance, 
and Finsert name of the REC1 is in 
compliance with Rules .0305(b)(2) 
and ■0305(b)(3') of this Section. I 
am aware that there are significant 
penalties for willfully submitting 
false, inaccurate or incomplete 
information. " 
Certification of the completion of all remedial 
action activities must also include the following 
statement: 

"The approved and certified site 
remedial action plan has been 
implemented, and to the best of 
my knowledge and belief, 
cleanup levels determined pursu- 
ant to Rule .0308 of this Section 
have been achieved, and no sig- 
nificant or otherwise unaccept- 
able risk or harm to human 
health or the environment re- 
mains at the site. " 
(c) The REC may approve and certify site activities and 
documents pursuant to these Rules only when the following 
environmental sample collection and analyses criteria are 
met: 

(1) The REC must employ analytical and environmen- 
tal monitoring data, to support recommendations 
or conclusions with respect to assessment, re- 
moval , treatment, or containment actions, which 
are scientifically valid and of a level of precision 
and accuracy commensurate with their stated or 
intended use. 

(2) Procedures and methodologies employed for the 
collection and analysis of soil, sediment, water, 
vapor, air, and waste samples shall be: 

(A) methods published by the United States 
Environmental Protection Agency 
(USEPA), the American Society for Test- 
ing and Materials (ASTM), the American 
Public Health Association (APHA), the 
National Institute for Occupational Safety 
and Health (NIOSH). the American Water 
Works Association (AWWA), or other 
organizations with expertise in the develop- 
ment of standardized analytical testing 
methods; or 

(B) modifications of published methods, pro- 
vided that all modifications are completely 
documented. 

(3) The REC may only use laboratories certified to 
analyze applicable certifiable parameters under 
15A NCAC 2H .0800, or a contract laboratory 
under the United States Environmental Protection 



Agency Contract Laboratory Program to analyze 
samples collected pursuant to rules under this 
Section. 

(4) Laboratory and other reports of analyses of 
aqueous samples shall be reported as mass per 
unit volume: such reports of analyses of solid 
samples shall be reported as mass per unit mass. 

(5) The REC shall only allow sample collection and 
analyses to be performed by persons who are 
qualified by education, training, and experience. 

(6) All documents prepared pursuant to these regula- 
tions that contain the results of sample collection 
and analyses shall include the following informa- 
tion: 

the date, location, and time of sampling. 



£A1 



(Bl 



(C) 



m 



£m 



(F} 



£G} 



OD 



m 



and the name of the individual who col- 
lected the sample; 

specification of aU sample filtration or 
preservation procedures used; 
the date of receipt of the sample at the 
laboratory, and the date(s) the sample was 
extracted and analyzed; 
the name and address of the laboratory, and 
proof of certification under 15A NCAC 2H 
.0800 or the USEPA Contract Laboratory 
Program; 

the sample matrix description and identifi- 
cation number(s); 

the sample preparation and analytical 
method name(s) and number(s); 
the results of the analysis, in clearly ex- 
pressed concentration units; 
the sample quantitation limit of each re- 
pxjrted analyte based upon analytical condi- 
tions: 

details of any known conditions or findings 
which may affect the validity of analytical 
data, including but not limited to equipment 
blank, trip blank, and method blank, surro- 
gate, spiked sample, or other quality con- 
trol data; 



m 



£K} 



the laboratory's written justification for any 
sample dilution, additional sample prepara- 
tion, or deviation from specified analytical 
methods; and 

complete chain of custody documentation 
for each sample, 
(d) The REC may approve and certify site activities and 
documents pursuant to this Section only when procedures to 
protect health, safety, public welfare and the environment 
during the performance of response actions are being 
implemented. The scope and detail of health and safety 
procedures shall be commensurate with the degree and 
nature of the risks posed to human and ecological popula- 
tions by the disposal site and response actions. Standardized 
health and safety plans may be a ppropriate for routine 
activities conducted during response actions. Such proce- 



^11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



363 



PROPOSED RULES 



dures shall include, without limitation, at least the follow- 
ing: 

Measures to protect human populations from 

exposure to hazardous substances. 

Air monitoring activities, if necessar,' to protect 

the public from exposure to gases and air-bome 

particulates. 

Measures necessary to contain hazardous sub- 






(3) 



stances, including: 

(A) measures to control stormwater runoff: 

fB) measures to control dust and other en\iron- 

(Ci 






mental media (e.g.. wetting soils): 
measures to decontaminate vehicles and 
equipment to minimize the spread of con- 
taminated soil from the disposal site: 
measures to secure on-site excavations and 



stockpiles of contaminated materials; and 
discontinuance of response actions where 
necessars' to protect public health and 
safety, 
(e) The REC must plan and implement the remedial 
investigation so that to the extent practicable the location 
and identity of all hazardous substances discharged to the 
environment at a site have been established. All areas 
know n. suspected, or having a reasonable probability of 
being contaminated bv hazardous substances must be 
investigated. 

(F) Tlie REC must plan and implement the remedial 
investigation so that the areal and vertical extent of hazard- 
ous substance contamination is delineated for each area of 



(g) The REC ma\ certif\' only remedial investigation 
plans which are prepared in compliance with Paragraphs (c). 
(d). (e). and (f) of this Rule and any other applicable 
requirements and which contain at least the following: 

(1) site location information including street address, 
longitude and latitude, and site and surrounding 
property land use; 

(2) a summary' of all management practices employed 
at the site for hazardous wastes and any wastes 
that ma\' have contained hazardous substances 
including: a list of types and amounts of waste 
generated (with RCRA waste codes), treatment 
and storage methods, and ultimate disposition of 
wastes; a description of the facility's past and 
current RCRA status: the location and condition 
of aU identified \essels currently or previously 
used to store anv chemical products, hazardous 
substances or wastes; and a summary of the 
nature of al] identified on-site hazardous substance 
releases, including disposal or spills; 

(3) United States Geological Sur\'ey topographic maps 
sufficient to display topographv within a one-mile 
radius of the site; 

(4) a site surye\' plat prepared and certified by a land 
sur.e\or registered in the state of North Carolina 
including: scale; benchmarks: north arrow; loca- 



tions of property boundaries, buildings, struc- 
tures, all perennial and non-perennial surface 
water features, drainage ditches, dense vegetation. 
known and suspected spill or disposal areas, 
underground utilities, storage vessels, existing on- 
site wells; and identification of all adjacent prop- 
erty owners and land usage; 

(5) a description of local geologic and hydrogeologic 
conditions: 

(6) inventory and map of all identifiable wells, 
springs, and surface-water intakes used as sources 
of potable water within a one-half mile radius of 
each source area, or, if the source area is un- 
known, within a one-half mile radius of each 
point where contamination has been identified at 
the site. 

(7) an evaluation of the site and all adjacent property 
for the existence of any environmentally sensitive 
areas; 

(8) a copy of the current owner's(s') deed(s) to the 
property: 

(9) a chronological listing of all previous owners and 
each period of ownership since the property was 
originally developed from pristine land; 

(10) operational history with aerial photographs and 
San borne Fire Insurance maps to support land-use 
history; 

(1 1) a list of all hazardous substances which have been 
used or stored at the site, and approximate 
amounts and dates of use or storage as revealed 
by a\ailable written documentation and interviews 
with a representative number of former and 
current emplo\ees or occupants possessing rele- 
\ant information: 

( 12) site en\ironmental permit history, including copies 
of aU federal, state, and local environmental 
permits, past and present, issued to the 
remediating party or within its custody or control; 

(13) a summary of aU previous and ongoing environ- 
mental investigations and environmental regula- 
tory involvement with the site, and copies of all 
associated reports and laboratory data in public 
records, or within the custody or control of the 
REC or remediating party; 

(14) intended procedures for characterizing site geo- 
logic and h\'drogeologic conditions and identifying 
and delineating each contamination source as to 
each affected environmental medium, including 
anv plan for special assessment such as a geo- 
physical survey; 

(15) intended methods, locations, depths of. and 
justification for, all sample collection points for 
all media sampled, including monitoring well 
locations and anticipated screened inter\als; 

(16) proposed field and laboratory procedures for 
qualit\- assurance''quality control; 

(17) proposed analytical parameters and analytical 



364 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



PROPOSED RULES 



methods for all samples; 

(18) equipment and persomiel decontamination proce- 
dures: and 

(19) a health and safety plan that conforms to the 
federal Occupational Safety and Health Act, 29 
U.S.C. § 651. at seq . and Title 29 of the Code of 
Federal Regulations, and assures that the health 
and safety of nearby residential and business 
communities will not be adversely affected by 
activities related to the remedial investigation. 

(h) The REC may certify only remedial investigation 
reports which are prepared in compUance with Paragraph (c) 
of this Rule and any other a pplicable requirements and 
which contain at least the following: 

(1) a narrative description of how the investigation 
was conducted, including a discussion of any 
variances from the approved work plan: 

(2) a description of groundwater monitoring well 
design and installation procedures, including 
drilling methods used, completed drilling logs, "as 
built" drawings of all monitoring wells, well 
construction techniques and materials, geologic 
logs, and copies of all well installation permits: 

(3) a map, drawn to scale, showing all soil sample 
and monitoring well locations in relation to known 
disposal areas or other sources of contamination. 
Monitoring wells must be surveyed to a known 
benchmark. Soil sample locations must be sur- 
veyed to a known benchmark or flagged with a 
secure marker until after the remedial action is 
completed. Monitoring well locations and eleva- 
tions must be surveyed by a registered land 
surveyor: 

a description of all field and laboratory quality 
control and quality assurance procedures followed 
during the remedial investigation: 
a description of procedures used to manage drill 
cuttings, purge water and decontamination water: 
a summary of site geologic conditions, including 
a description of soils and vadose zone characteris- 
tics: 

a description of site hydrogeologic conditions (if 
groundwater assessment is determined to be 
necessary), including current uses of groundwater, 
notable aquifer characteristics, a water table 
elevation contour map with groundwater flow 
patterns depicted, and tabulated groundwater 
elevation data: 

(8) tabulation of analytical results for all sampling 
(including sampling dates and soil sampling 
depths) and copies of all laboratory reports includ- 
ing quality assurance/quality control documenta- 
tion: 

(9) soil, groundwater, surface water and sediment 
contaminant delineation maps and cross sections, 
including scale and sampling points with contami- 
nant concentrations: 



(41 

m. 

£6} 

m 



(10) a description of procedures and the results of any 
special assessments such as geophysical surveys, 
immunoassay testing, soil gas surveys, or test pit 
excavations: and 

(11) color copies of site photographs. 
(i) Any proposed remedy which would: 

(1) be conducted entirely on site and for which a 
permit waiver is desired under G.S. 130A- 
310.3(e): 

(2) involve on-site containment or capping: or 
(3} exceed the three million dollars ($3.000.000) 

cost maximum contained in G.S. 130A- 
310.9(a) without a waiver, 
must receive Department concurrence prior to implementa- 
tion. The REC must submit to the Department a brief 
summary of available remedies, their projected costs, and in 
each case reasons why a remedy was accepted or rejected. 

(j) Thirty days prior to approving any remedial action 
plan, the REC must provide notice of the remedial action 
plan to those who have requested notice that such plans have 
been developed, as provided in G.S. 130A-310.4(c)(2). The 
REC must provide proof of such notice and any resulting 
comments from the public to the Department prior to 
approval of the remedial action plan. 

(k) Remedial actions that involve the emission or dis- 
charge of hazardous substances to the atmosphere shall be 
conducted in a manner that provides for the protection of 
human health and the environment, in conformance with this 
Section and any a pplicable permits, approvals, laws or other 
rules or regulations. 

(1) The REC may certify only remedial action plans 
which are prepared in compliance with Paragraphs (c). (d), 
(i). (j). and (k). of this Rule and any other applicable 
requirements and which contain at least the following: 

(1) A discussion of the results of the remedial investi- 
gation including media contaminated, contami- 
nants of concern, and the areal and vertical extent 
of contamination. 

(2) A brief statement of objectives for the remedial 
action. 

(3) An evaluation of available remedial alternatives 
using the following feasibility study criteria: 

(A) protection of human health and the environ- 
ment, including attainment of cleanup 
levels: 

(B) compliance with applicable federal, state 
and local regulations: 

(C) long-term effectiveness and permanence: 

(D) reduction of toxicity, mobility and volume: 

(E) short-term effectiveness, i.e.. effectiveness 
at minimizing the impact of the site reme- 
dial action on the environment and the local 
community: 

(F) implementability. i.e.. technical and logisti- 
cal feasibihty. including an estimate of time 
required for completion: 
cost: and 



(G) cost: and 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



365 



PROPOSED RULES 



£4} 



(5) 



(6} 



m 



m 



(21 



10) 



(H) community acceptance. 
A detailed description and conceptual design of 
the proposed remedy, including process flow 
diagrams and pre-design drawings of all major 
components of the treatment train. 
A demonstration that the proposed remedy is 
supported by the remedial alternative feasibility 
study conducted pursuant to Paragraph (1)(3) of 
this Rule. 

A description of all activities necessary to imple- 
ment the proposed method(s) of remedial action in 
compliance with applicable laws and regulations 
and in a manner such that cleanup standards are 
met. These activities include, but are not limited 
to, well installation and abandonment, sampling, 
run-on/ run-off control, discharge of treated waste 
streams, and management of investigation and 
remedial action derived wastes. 
A description of any proposed treatability studies 
and additional site characterization needed to 
support the final design. 

A description of procedures and a schedule for 
additional site characterization, treatability studies, 
final design, construction, operation and mainte- 
nance, system monitoring and performance evalu- 
ation, and progress reporting. 
A description of the criteria for remedial action 
completion, including procedures for post-reme- 
dial and confifmatory sampling. 
A health and safety plan that conforms to the 



LLQ 



federal Occupational Safety and Health Act. 29 
U.S.C. § 651, et seq. and Title 29 of the Code of 
Federal Regulations, and assures that the health 
and safety of nearby residential and business 
communities will not be adversely affected by 
activities related to the r-:medial action. 
Equipment and personnel decontamination proce- 
dures, 
(m) Prior to beginning construction, the REC must 

certify remedial action preconstruction reports which contain 

at least the following: 

(1) the results of all treatability studies and additional 
site characterization work completed since the 
remedial investigation; 

(2) final engineering design report, including a narra- 
tive description of process design, final plans and 
specifications, and an updated project schedule; 
and 

(3) copies of final registrations, permits and approv- 
als. 

(n) The REC may certify only remedial action construc- 
tion completion reports which contain at least: 

(1 ) "as built" plans and specifications; 

(2) a summary of major variances from the final 
design plans; and 

(3) a summary- of any problems encountered during 
construction. 



(o) The REC must prepare and certify quarterly remedial 
action progress reports for remedial actions of greater than 
three months duration. Groundwater remedial action 
progress reports may be prepared on an annual basis after 
the first full year of remedial action and the completion of 
four quarterly monitoring events. The REC may certify 
only remedial action progress reports which are prepared in 
compliance with Paragraph (c) of this Rule and any other 
applicable requirements and which contain at least the 
following: 

(1) operation and maintenance results, i.e., summa- 
ries of remedial action operating and maintenance 
requirements and a discussion of major problems 
encountered; 

(2) performance evaluation results, i.e., tabulated and 
graphical presentations of monitoring data and a 
comparison of remedial action performance to 
design goals; 

(3) a description of all field and laboratory quality 
control and quality assurance procedures followed 
during any sampling and analysis; 

(4) tabulation of analytical results for all sampling 
and copies of all laboratory reports including 
quality assurance/quality control documentation; 
and 

(5) a map, drawn to scale, showing all soil sample 
and monitoring well locations. 

(p) The REC may certify only final remedial action 
completion reports which contain at least the following: 

(1) a final progress report which includes all the 
information required under Paragraph (o) of this 
Rule; 

(2) a summary of remedial action operating experi- 
ence and effectiveness in meeting design goals, 
based on all performance monitoring data and 
progress reporting to date; 

(3) a discussion of criteria for remedial action com- 
pletion, and a demonstration, supported by confir- 
matory sampling data, that such criteria have been 
satisfied; and 

(4) a summary of total project costs. 

(q) In the performance of its role pursuant to these 
Rules, the REC must manage investigation or remedial 
action derived wastes in a manner that provides for the 
protection of human health and the environment and that 
complies with all applicable federal, state, and local laws, 
rules, regulations and guidance. 

Authority G.S. 130A-3 10. 12(b). 

.0307 DEPARTMENTAL AUDITS AND 
INSPECTIONS 

(a) The Department may conduct random or targeted 
audits of any REC, remediating party, response action or 
site which is subject to this Section. 

(b) During Departmental audits of voluntary remedial 
actions, the Department may: 



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(1) request that the person who has performed the 
response action provide a written explanation, or 
other supporting evidence, to demonstrate compli- 
ance with this Section and other applicable re- 
quirements; 

(2) request that the person who has performed the 
response action or who is the subject of the audit 
appear at one of the Department's offices for an 
interview to provide an oral explanation, or other 
evidence, to demonstrate compliance with this 
Section and other applicable requirements (any 
person requested to appear for an interview may 
be accompanied by an attorney or other represen- 
tative); 

(3) visit a site or other location to determine whether 
an REC. remediating party, response action or 
site is in compliance with this Section and other 
applicable requirements; 

(4) investigate, take samples at a site and inspect 
records, conditions, equipment or practices mate- 
rial to tlie response action, or property related to 
the site; or 

(5) take any other action the Department deems 
necessary to determine whether response actions 
have been performed in compliance with this 
Section and other applicable requirements. 

(c) Remediating parties must provide financial assurance, 
by paying an annual administration cost, to participate in the 
voluntary remedial action program under this Section. This 
payment shall be set by the Department based on the 
expected cost of auditing voluntary remedial actions and 
shall be used to offset that cost. Remediating parties 
providing such monies shall pay any shortfall, or be 
reimbursed any remainder not expended by the Department, 
annually. 

(d) Based on audit findings, the Department may termi- 
nate a site's eligibility for the voluntary remedial action 
program, disqualify an RSM or REC from work on a site or 
from the program, and take any other applicable enforce- 
ment action. 

Authority G.S. 130A-3 10. 12(b); 130A-3 10.9(b). 



Waste Disposal Sites. 

(c) RECs' determinations of cleanup levels shall be 
submitted to the Department, accompanied by the following 
sworn and notarized certification, in accordance with the 
schedule for such submittals provided in Rule .0302(1) of 
this Section: 

"I. [insert name of RSM1 on behalf of [insert 
name of REC1 certify that the accompanying 
cleanup levels have been determined using the 
current DEHNR guidance pertaining to Inactive 
Hazardous Substance or Waste Disposal Sites. " 

Authority G.S. 130A-3 10.3(d); 130A-31 0.12(b). 



.0308 CLEANUP LEVELS 

(a) Characterization of risks to health, safety, public 
welfare, and the environment is not required under this 
Section for a disposal site, environmental medium, or 
chemical for which response actions have successfully 
reduced concentrations of hazardous substances to on-site 
natural background levels established in accordance with 
current published Department guidance p>ertaining to Inactive 
Hazardous Substance or Waste Disposal Sites. 

(b) Any characterization under this Section of risks to 
health, safety, public welfare and the environment, and 
determinations of cleanup levels for all environmental 
media, shall be made using current published Department 
guidance pertaining to Inactive Hazardous Substance or 



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367 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant 
to G.S. 150B-21.1(e), publication of a temporary rule in the North Carolina Register series as a notice of rule-making 
proceedings unless this notice has been previously published by the agency. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

Rule-making Agency: Department of Environment , Health, 
and Natural Resources 

Rule Citation: 15A NCAC IM .0101 - .0102, .0201 - 
.0202, .0301 - .0306 

Effective Date: June 19, 1996 

Findings Reviewed: .Approved by Julian Mann, 111 

Authority for the rule-making: G.S. 143-215. 74C-E 

Reason for Proposed Action: The purpose of this 
rulemaking is to establish the certification procedures and 
requirements for operators of animal waste management 
systems as required by NCOS 143-215. 74C - E. The intent 
of this certification is to reduce nonpoint source pollution 
that may result from the land application of animal waste 
tliat w generated by the raising of swine (Sus scrofa). The 
certification program is designed to protect the public health 
atvd to encourage the development and improvement of the 
state 's agricultural land for the protection of food and other 
agricultural products. 

Comment Procedures: Comments, statements, data and 
other information may be submitted in writing within 30 days 
after the date of publication of this issue of the North 
Carolina Register. Copies of the proposed rules and 
information package may be obtained by contacting the 
Technical Assistance and Certification Group at (919) 733- 
0026. Written comments may be submitted to Ron Terrell, 
Division of Environmental Management, Water Quality 
Section, Technical Assistance and Certification Group, P.O. 
Box 29535, Raleigh, NC 27626-0535. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IM - CERTIFICATION OF 

OPERATORS OR ANIMAL WASTE 

MANAGEMENT SYSTEMS 

SECTION .0100 - CENTRAL 
PURPOSE/DEFENITIONS 

.0101 PUTiPOSE 

(a) These Rules set forth the requirements and proce- 
dures for a person who performs the land application of 
animal waste from swine production to be certified as 



required by G.S. 143-215. 74C-E. TTie purpose of this 
statute is to reduce nonpoint source pollution in order to 
protect the public health and to conserve and protect the 
quality' of the State's water resources, and to encourage the 
development and improvement of the State's agricultural 
land for the production of food and other agricultural 
products. 

(b) TTiese Rules apply to all animal waste management 
systems designed to manage and that actually serve more 
than 250 swine. Such facilities are required to maintain a 
certified Operator in Charge for the land application of 
animal waste, as defined in Rule .0102 of this Section. 
Animal waste shall be managed so that the application of the 
waste does not cause a discharge of pollutants to the surface 
waters of the State, except as a result of a storm event more 
severe than a 25-vear, 24-hour storm. Only the certified 
Operator in Charge, or a person under the supervision of 
the Operator in Charge, may apply animal waste to the land. 
The owner of the facility' is responsible for ensuring that the 
waste application is performed by an Operator in Charge or 
a person under the supervision of an Operator in Charge. 

History Note: Authority G.S. 143-215. 74C-E; 

Temporary Adoption Eff. June 19, 1996. 

.0102 DEFINITIONS 

(a) "Animal waste" means liquid residuals, resulting from 
the raising of swine (Sus scrofa), that are collected, treated, 
stored, or applied to the land through an animal waste 
management system. 

(h) "Animal waste management system" means a combi- 
nation of structural and nonstructural practices that will 
properly collect, treat, store, or apply animal waste to the 
land such that no discharge of pollutants occurs to surface 
waters of the State bv any means except as a result of a 
storm event more severe than the 25-year, 24-hour storm. 

(c) "Application" means laving, spreading on, irrigating, 
or injecting animal waste onto or into land. 

(d) "Appropriate examination" means an examination that 
has been developed and approved by the Secretary or his 
designee. 

(e) "Approved training program" means a training 
program that has been developed and approved b^ the 
Secretary or his designee in cooperation with the Coopera- 
tive Extension Service. 

(f) "Currently \'alid certification" means that all training 
and certification requirements ha\e been completed and 
annual renewal fees have been paid as specified in G.S. 
143-215. 74E (a)-(b). 

(g) "Operator in Charge" means a person who holds a 
currently \alid certificate to operate an animal waste 
management system and who has primary responsibility for 



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TEMPORARY RULES 



the operation of the system. 

(h) "Owner" means the person who owns or controls the 
land used for agricultural purposes or the person's lessee or 
designee. 

(i'j "Person under the supervision of an Operator in 
Charge" means a person who takes directions from the 
Operator in Charge and who may only land apply animal 
waste when the Operator in Charge is on the property and 
is available for consultation and advice at any time during 
the application of animal waste. 

History Note: Authority G.S. 143-21 5. 74C-E; 
Temporary Adoption Eff. June 19, 1996. 

SECTION .0200 - DUTIES AND REQUIREMENTS 

.0201 DUTIES AND REQUIREMENTS OF 
OWNERS 

(a) The owner of each individual animal waste manage- 
ment system must submit a letter to tlie Division of Environ- 
mental Management, Technical Assistance and Certification 
Group. Department of Environment, Health, and Natural 
Resources, P.O. Box 29535. Raleigh, North Carolina 
27626-0535. which designates an Operator in Charge and is 
countersigned by the certified operator. This letter must be 
submitted by January J_^ 1997 for all facilities in operation 
as of that date. Otherwise, the Operator in Charge must be 
designated: 

(1) before a new animal waste management system is 
placed in operation after January \j_ 1997; or 

(T) within 30 days after a new Operator in Charge is 
designated. 

(b) The Secretary or his designee may assess a civil 
penalty of ug to one thousand dollars ($1.000) for failure to 
designate and maintain an Operator in Charge for each 
animal waste management system that serves more than 250 
swine. 



cal Assistance and Certification Group, Department of 
Environment, Health, and Natural Resources. P.O. Box 
29535. Raleigh. North Carolina 27626-0535. in writing, 
within 30 days of any change in address. 

(c) The Secretary or their designee may assess a civil 
penalty of ug to one thousand dollars ($1,000) if it finds that 
the Operator in Charge has practiced fraud or deception, or 
that reasonable care, judgment, or the application of their 
knowledge or ability was not used in the performance of his 
duties. 

History Note: Authority G.S. 143-215.74C-E; 
Temporary Adoption Ejf. June 19, 1996. 

SECTION .0300 - CERTIFICATION OF 
OPERATORS 

.0301 QUALIFICATIONS 

An applicant for certification as an Animal Waste Man- 
agement System operator shall be required to: 

(1) have completed an approved trainin g program on 
the operation of animal waste management sys- 
tems that provides instruction regarding the 
collection, storage, treatment, and application of 
animal waste. The applicant shall be familiar 
with the components of animal waste collection 
and treatment systems, operation and maintenance 
of this equipment, laws and regulations governing 
the management of animal waste, waste manage- 
ment plans, and have the ability to perform 
calibrations and calculations relating to the appli- 
cation of the waste; 

(2) have demonstrated competence in the operation of 
animal waste management systems by passing an 
appropriate examination; and 

(3) have paid the required fees as stipulated by G.S. 
143-215. 74E. 



History Note: Authority G.S. 143-215. 74C-E; 
Temporary Adoption Ejf. June 19, 1996. 



History Note: Authority G.S. 143-21 5. 74C-E; 
Temporary Adoption Ejf. June 19, 1996. 



.0202 DUTIES AND REQUIREMENTS OF 
OPERATORS IN CHARGE 

(a) An Operator in Charge of an animal waste manage- 
ment system: 

(1) shall possess a currently valid certification as an 
Animal Waste Management System Operator; 

(2) shall be responsible for and must visit and inspect 
each animal waste management system at least 
weekly; 

shall be on site during the application of animal 
waste; and 



m 

£4} 



shall properly manage and document operation 

and maintenance of the animal waste management 

system. 

(b) Holders of certifications under this program shall 

notify the Division of Environmental Management. Techni- 



.0302 APPLICATION PROCEDURES 

(a) An application for requesting examination for certifi- 
cation as an animal waste management system operator must 
be properly and accurately completed and submitted to the 
Department of Environment, Health, and Natural Resources, 
or ifs designee. Applications can be obtained from, and 
shall be returned to: Division of Environmental Manage- 
ment, Technical Assistance and Certification Group, 
Department of Environment. Health, and Natural Resources, 
P.O. Box 29535. Raleigh. North Carolina 27626-0535. 

(b) Incomplete applications cannot be processed and will 
be returned to the applicant. 

(c) An application being filed for examination shall be 
postmarked by the United States Postal Service at least 30 
days prior to the date upon which the examination js 
scheduled to be administered, or be submitted according to 



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369 



TEMPORARY RULES 



a process approved by the Secretary or his designee. 

(d) Upon receipt of the application by the Secretary or 
his designee, the application shall be reviewed by the 
designee(s) of the Secretars' for eligibility to take the 
examination. Tlie applicant shall be notified of their 
eligibility and shall be ad\i5ed of the date, time and place of 
the examination. In cases where the applicant js ineligible 
for examination, the applicant shall also be notified by letter 
and advised of the reason for ineligibility. An\' applicant 
who intentionally supplies false information on the applica- 
tion for certification for the purpose of gaining eligibilirs', 
shall be ineligible for the examination. 

(e) An applicant shall be eligible to take the examination 
upon completion of an approved training school designed for 
operators of animal waste management systems. Comple- 
tion of an approved school shall be verified by a signed 
affidavit from the school instructor. 

(f) An applicant who has failed to pass the appropriate 
examination after three attempts must then again satisfacto- 
rily complete an approved training program before being 
eligible to retake the examination. 



Secretary. 
(8) Under normal circumstances, neither the examina- 
tion grade nor the examination paper of any 
applicant will be made available to anyone other 
than the Secretary' or his designee and those 
approved persons who assist in conducting and 
grading the examinations. 

History- Note: Authority- G.S. 143-215. 74C-E; 
Temporary- Adoption Eff. June 19, 1996. 

.0304 RENEWAL OF CERTIHCATION 

A currently valid certification as an Animal Waste 
Management System Operator may be maintained by: 

(1) the payment of an annual renewal fee established 
h\ the Secretary'; and 

(2) once e\'erv fine years: 

(a) attend the six hour training program; and 

(b) demonstrate competence in the operation of 
animal waste management systems by 
passing an appropriate examination. 



History- Note: Authority G.S. 143-215. 74C-E; 
Temporary Adoption Eff. June 19, 1996. 



History- Note: Authority- G.S. 143-215. 74C-E: 
Filed as a Temporary Adoption Eff. June 19, 1996. 



(6} 

m 



.0303 EXAMINATION PROCEDURES 

The Secretary or his designee shall conduct examinations 
for certification: 

The dates, times, and places of examination shall 
be determined b\' the Secretan,'. 
Each applicant filing for examination shall be 
notified of the date, time, and place of the exami- 
nation- 
Examinations approved by the Secretary shall be 
given only to those who, after filing proper 
application, have been determined to be eligible. 
When each applicant receives their examination 
paper, they will identify themselves by way of a 
valid driver's license or other form of photo 
identification satisfactory to the proctor of the 
examination. 

Representatives of the Secretary or his designees, 
who are supervising the examinations mav' take 
appropriate action against applicants, including 
dismissal from the examination, if the examination 
policies and procedures as outlined by the Secre- 
tan' or his designee are not followed. 
An examination score of 70% or higher shall 
constitute a passing score. 

The applicant will be informed, in writing only, 
by the Secretary or his designee as to the results 
of the examination. If a passing score js made, 
the applicant will be certified as an Animal Waste 
Management System Operator and shall be issued 
a certificate by the Secretary. After each exami- 
nation, a Hst of those certified shall be prepared 
and made part of the permanent records of the 



ill 

ill 

(3} 
(4) 

15} 



.0305 REVOCATION, RELINQUISHMENT OR 
CSfVALIDATION OF CERTinCATION 

(a) The Secretary mav revoke or suspend the certificate 
of an operator or may issue a written reprimand to an 
operator ff it finds that the operator has practiced fraud or 
deception; or that reasonable care, judgment, or the applica- 
tion of their knowledge or ability was not used in the 
performance of their duties; or that the operator in charge 
is incompetent or unable to properly perform their duties, m 
accordance with the procedure set forth in G.S. 150B. 
Article 3^ Prior to the Secretary or his designee taking 
action on a proposed revocation, suspension or reprimand, 
the operator shall be given an opportunity to submit a 
written statement and present oral argument before the 
Secretary or his designee at a scheduled meeting. Notice of 
the meeting shall be hand delivered or by certified mail at 
least 15 days prior to the meeting. 

(b) Notice of the revocation or suspension shall be hand 
delivered to the operator or by certified mail at least 20 days 
prior to the effective date of the revocation or suspension. 
The notice shall contain the alleged facts or conduct upon 
which the revocation or suspension is based and shall inform 
the operator of the opportunity to contest the action. 

(c ) Certification mav be relinquished by submission to 
the Secretary or his designee of the original certificate and 
a notarized statement of relinquishment. 

(d) Failure to submit the annual renewal fee by the due 
date shall result in invalidation of the certification. Certifi- 
cation may be reinstated upon pay ment of aU renewal fees 
and meeting all other qualifications outlined in Rule .0304 
of this Section. 



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History Note: Authority G.S. 143-21 5. 74C-E; 
Temporary Adoption Eff. June 19, 1996. 

.0306 RECERTIFICATION FOLLOWING 

REVOCATION OR RELINQUISHMENT 

(a) After revocation or relinquishment has been effective 
for a period of not less than 270 days, a person may apply 
in writing for recertification by the Secretary or his 
designee. The petition must include any relevant facts 
concerning changes to conditions under which revocation or 
relinquishment occurred. Such facts must show clearly that 
the applicant will comply with the laws and regulations 
concerning the operation of animal waste management 
systems. 

(b) Within 120 days following receipt of an application 
for recertification, the Secretary will notify the applicant by 
letter of its decision to deny or grant examination eligibility 
in accordance with procedures set out in Rule .0305 of this 
Section. Additional eligibility requirements including a 
show cause conference may be imposed by the Secretary or 
his designee as is deems appropriate. Eligibility will only 
be granted if there is substantial evidence that the conditions 
leading to the revocation or relinquishment have been 
corrected. 



(c) Recertification of a person as an operator of animal 
waste management systems shall only occur by means of 
a pplication and examination. The examination will not be 
waived. The applicant shall meet the eligibility require- 



ments as outlined in Rule .0301 of this Section. 

(d) Upon notification of the Secretary's or his designee's 
decision to deny eligibility, the applicant may appeal the 
decision pursuant to the procedures contained in G.S. 150B, 
Article 3. 



History Note: Authority G.S. 143-215.74C-E; 
Temporary Adoption Ejf. June 19, 1996. 

Rule-making Agency: DEHNR - Commission for Health 
Services 

Rule Citation: 15A NCAC 21H .0111. .0113 

Effective Date: June 19, 1996 

Findings Reviewed and Approved by Beecher R. Gray 

Authority for the rule-making: G.S. 130A-129 

Reason for Proposed Action: Tfiis Rule is proposed for 
amendment in order to extend NC Sickle Cell Program 
coverage to children with Sickle Cell disease. 

Comment Procedures: All persons interested In these 
matters are encouraged to submit written comments or 
questions to Grady Balentine, Department of Justice, PO 



Box 629, Raleigh, NC 27602-0629. Comments will be 
accepted by Mr. Balentine through August 13, 1996. 

CHAPTER 21 - HEALTH: PERSONAL HEALTH 

SUBCHAPTER 21H - SICKLE CELL SYNDROME: 

GENETIC COUNSELING: 

CHILDREN AND YOUTH SECTION 

SECTION .0100 - SICKLE CELL SYNDROME 
PROGRAM 

.0111 MEDICAL SERVICES PROVIDED 

(a) The North Carolina sickle cell syndrome program 
shall provide services only when they are not available 
through other sources or agencies. Prior to requesting 
services, it shall be determined that the patient is not eligible 
for services through the division of services for the blind; 
Medicaid and Medicare programs; school health program; 
vocational rehabilitation; workmen's compensation or 
civilian health and medical programs of the uniformed 
services (CHAMPUS). 

(b) If an individual meets the eligibility requirements, he 
shall be provided the following medical services: 

(4^ For individuals below tho ago of 21, all outpatient 

and all inpatient oaro shall b e paid for by the 
Crippl e d Children's Program, including all hospi 
tal and physician fees. — For individuals 21 years 
of ago and older, all outpatient and all inpatient 
care ohall b e paid for by the sickl e c e ll syndrom e 
program. 

(U f3) inpatient care; Outpatient sor i 'icos include: 

(2) (A) routine visits to the physician; 

(3) (B) prescription drugs such as antibiotics; 

(4) fG) general analgesics; 

(5) (©) appliances; 

(6) ^ preventive and limited maintenance dentistry; 
d e ntistr)' for adult pati e nt only; 

(7) (F) obstetrical care (excluding delivery of baby); 
and 

(8) (G^ eye care (when the division of services for 
the blind will not provide coverage). 

History Note: Filed as a Temporary Amendment Eff. 

October 14, 1988, for a period of 180 days to expire on 

April 12, 1989; 

Filed as a Temporary Amendment Ejf. November 7, 1983, 

for a period of 120 days to expire on March 4, 1984; 

Authority G.S. 130A-129; 

Eff. February 1, 1976; 

Amended Eff. April 22. 1977; 

Readopted Eff. December 5, 1977; 

Amended Eff. October 1, 1984; March 1. 1984; July I, 

1982; January 1. 1982; 

Expired Temporary Amendment Eff. April 12, 1989; 

Amended Eff. September 1 , 1990; 

Temporary Amendment Eff. June 19, 1996. 



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371 



TEMPORARY RULES 



.01 13 PROCEDURE FOR REQUESTING SERVICES 

(a) Any provider (physician, hospital, dentist) rendering 
services to a patient with one of the named disorders may 
request reimbursement services through the Sickle Cell 
Syndrome Program. Childr e n's Sp e cial H e alth SorviooG 
wh e n und e r 21 y e ars of ag e and the sickl e c e ll syndrom e 
program when 21 years of ago and older. The request shall 
be made by completing the appropriate program authoriza- 
tion request form. The form shall include: 



biographical data of patient; 
diagnoses (primary and secondary); 
provider information including service date(s); 
request and describe service; 
describe and justify treatment or service, list other 
providers and state drug information if applicable; 
check number services provided for ambulatory 
visits and answer all questions pertaining to 
patient's treatment and financial support; and 
signature of physician or dentist, address and date 
of request. 
(b) A financial eligibility form shall be submitted in 
accordance with rules found in 15A NCAC 24A. 



(1) 
(2) 
(3) 
(4) 
(5) 

(6) 



(7) 



History Note: Authority G.S. 143B-193; 
Eff. February 1, 1976; 
Readopted Ejf. December 5, 1977; 
Amended Ejf. July 1, 1982; April 1, 1982; 
Temporary Amendment Eff. June 19, 1996. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 12 - LICENSING BOARD FOR 
GENERAL CONTRACTORS 

Rule-making Agency: Licensing Board for General 

Contractors 

Rule Citation: 21 NCAC 12 .0204. .0503 

Effective Date: May 31, 1996 

Findings Reviewed: Approved by Beecher R. Gray 

Authority for the rule-making: G.S. 87-1; 87-10 

Reason for Proposed Action: To allow applicants for 
licensure and license renewal to demonstrate financial 
responsibility by obtaining a bond. 

Comment Procedures: Written comments or arguments on 
the proposed rule changes may be submitted to Mark D. 
Selph at the Board 's office. The Board 's address is PO Box 
17187. Raleigh, NC 27619. 

SECTION .0200 - LICENSING REQUIREMENTS 



.0204 ELIGIBILITY 

(a) Limited License. The applicant for such a license 
must: 

(1) Be entitled to be admitted to the examination 
given by the Board in light of the requirements set 
out in G.S. 87-10 and Section .0400 of this 
Chapter; 

(2) Be financially stable to the extent that the total 
current assets of the applicant or the firm or 
corporation he represents exceed the total current 
liabilities by at least ten — thousand — dollars 
($10,000.00). — Thi s requirement shall remain in 
effect for all applications mode prior to October 

4-; — 1990. For applications — made on or after 

Octob e r 1. 1990 on applicant for a limited lioonBo 
must be financially stable to the extent that tho 
total current assets of the applicant or the firm o i 
corporation he r e pres e nts exoeed th e total ourront 
liabilities by at l e ast tvtelve thousand five hundred 
dollars ($12,500); 

(3) Possess the competency and the ability, as re- 
vealed by the applicant's exfjerience and education 
to engage in the practice of general contracting 
within a specified classification or classifications 
in order to successfully complete a single project 
of a value of less than or equal to two hundred 
fifty thousand dollars ($250, (XX)). such compe 
tency and ability being determined in the sole 
discretion of the Board; 

(4) Successfully complete 70 percent of each part of 
the examination given the applicant by the Board 
dealing with the specified contracting classifica- 
tion chosen by the applicant; 

(b) Intermediate License. The applicant for such a 
license must: 

(1) Be entitled to be admitted to the examination 
given by the Board in light of the requirements set 
out in G.S. 87-10 and Section .0400 of thi; 
Chapter; 

(2) Be financially stable to the extent that the total 
current assets of the applicant or the firm oi 
corporation he represents exceed the total curreni 
liabilities by at least fifty thousand dollars 
($50, (XX)) as reflected in an audited financial 
statement prepared by a certified public accoun- 
tant or a qualified independent accountant who i 
engaged in the public practice of accountancy; 

(3) Possess the competency and the ability as revealec 
by the applicant's experience and education tc 
engage in the practice of general contractinj 
within a specified classification or classification; 
in order to successfully complete a single projec 
of a value of less than or equal to five hundrec 
thousand dollars ($500,000), such competency anc 
ability being determined in the sole discretion o 
the Board; 

(4) Successfully complete 70 percent of each part o 



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the examination given the applicant by the Board 
dealing with the specified contracting, classifica- 
tion chosen by the applicant. 

(c) Unlimited License. The applicant for such a license 
must: 

(1) Be entitled to be admitted to the examination 
given by the Board in Ught of the requirements set 
out in G.S. 87-10 and Section .0400 of this 
Chapter; 

(2) Be financially stable to the extent that the total 
current assets of the applicant or the firm or 
corporation he represents exceed the total current 
UabiUties by at least one hundred thousand dollars 
($100,000) as reflected in an audited financial 
statement prepared by a certified public accoun- 
tant or by a qualified independent accountant who 
is engaged in the public practice of accountancy; 

(3) Possess the competency and the ability, as re- 
vealed by the applicant's experience and education 
to engage in the practice of general contracting 
within a specified classification or classifications 
in order to successfully complete a single project 
of a value in excess of five hundred thousand 
dollars ($500,000), such competency and ability 
being determined in the sole discretion of the 
Board; 

(4) Successfully complete 70 percent of each part of 
the examination given the applicant by the Board 
dealing with the specified contracting classifica- 
tion chosen by the applicant. 

(d) Should the financial statement submitted by the 
a pphcant fail to demonstrate the required level of working 
capital, the applicant shall obtain a surety bond from a 
surety authorized to transact surety business in North 
Carolina pursuant to G.S. 58 Article 7, 16, 21, or 22. The 
surety shall provide proof that it maintains a rating from 
A.M. Best, or its successor rating organization, of either 
Superior (A-t- -I- or A-t-) or Excellent (A or A-). The bond 
shall be continuous in form and shall be maintained in effect 
for as long as the applicant maintains a license to practice 
general contracting in North Carolina or until the applicant 
demonstrates the required level of working capital. The 
application form and subsequent annual license renewal 
forms shall require proof of a surety bond meeting the 
requirements of this Rule. The applicant shall maintain the 
bond in the amount of fifty thousand dollars ($50,000) for 
a limited license, two hundred fifty thousand dollars 
($250,000) for an intermediate license, and five hundred 
thousand dollars ($500,000) for an unlimited license. The 
bond shall be for the benefit of any person who is damaged 
by an act or omission of the applicant constituting breach of 
a construction contract or breach of a contract for the 
furnishing of labor, materials, or professional services to 
construction undertaken by the a pplicant, or by an unlawful 
act or omission of the applicant in the performance of a 
construction contract. The lx)nd required by this Rule shall 
be in addition to and not in lieu of any other bond required 



of the applicant by law, regulation, or any party to a 
contract with the applicant. Should the surety cancel the 
bond, the surety and the applicant both shall notify the 
Board immediately in writing. If the applicant fails to 
provide written proof of financial responsibility in compli- 
ance with this Rule within 30 days of the bond's cancella- 
tion, then the applicant's license shall be suspended until 
written proof of compliance is provided. After a suspension 
of two years, the applicant shall fulfill all requirements of 
a new a pplicant for licensure. The practice of general 
contracting by an applicant whose license has been sus- 
pended purstiant to this Rule will subject the applicant to 
additional disciplinary action by the Board. 

fd4(e) Reciprocity. If an applicant is licensed as a 
general contractor in another state, the Board, in its discre- 
tion, need not require the applicant to successfully complete 
the written examination as provided by G.S. 87-15.1. 
However, the apphcant must comply with all other require- 
ments of these Rules to be eligible to be licensed in North 
Carolina as a general contractor. 

History Note: Filed as a Temporary Amendment Eff. June 

28, 1989 for a period of 155 days to expire on December 1 , 

1989; 

Authority G.S. 87-1; 87-10; 

Eff. February 1, 1976; 

Readopted Eff. September 26, 1977; 

Amended Eff. January 1, 1983; 

ARRC Objection March 19, 1987; 

Amended Eff. December 1, 1989; May 1, 1989; August 1, 

1987; 

Temporary Amendment Eff. May 31 , 1996. 

SECTION .0500 - LICENSE 

.0503 RENEWAL OF LICENSE 

(a) Form. An appUcation for renewal requires the holder 
of a valid license to set forth whether there were any 
changes made in the status of the licensee's business during 
the preceding year and also requires the holder to give a 
financial statement for the business in question. The 
financial statement need not be prepared by a certified 
pubUc accountant or by a qualified independent accountant 
but may be completed by the holder of a hcense on the form 
itself. However, the Board may require a license holder to 
submit an audited financial statement if there is any evidence 
indicating that the hcense holder may be unable to meet his 
financial obligations. Except as provided herein, the 
financial s tatement evidence of financial responsibility will 
be subject to approval by the Board in accordance with the 
working capital requirements of Rule .0204 of this Chapter. 
A licensee may be required to provide evidence of continued 
financial responsibility satisfactory to the Board should 
circumstances render such evidence necessary, and shall 
provide the Board with a copy of any bankruptcy petition 
filed by the licensee within 30 days of its filing. 

(b) Display. The certificate of renewal of license granted 



^11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



373 



TEMPORARY RULES 



by the Board, containing the signatures of the Chairman and 
the Secretary-Treasurer, must be displayed at all times by 
the licensee at his place of business. 

History Note: Filed as a Temporary Amendment Eff. June 

28, 1989, for a period of 155 days to expire on December 

1. 1989; 

Authority G.S. 87-1; 87-10; 

Eff. February 1, 1976; 

Readopted Eff. September 26, 1977; 

ARRC Objection March 19, 1987; 

Amended Eff. December 1, 1989; May 1, 1989; August 1, 

1987; 

RRC Removed Objection of March 19, 1987 Eff. August 20, 

1992 based on subsequent amendment; 

Amended Eff. September 1 , 1992; 

Temporary Amendment Eff. May 31 , 1996. 



374 NORTH CAROLINA REGISTER June 14, 1996 11:6 



LIST OF RULES CODIFIED 



1, 

X he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 


Key: 




Citation 


= Title, Chapter, Subchapter and Rule(s) 


AD 


= Adopt 


AM 


= Amend 


RP 


= Repeal 


With Chgs 


= Final text differs from proposed text 


Corr 


= Typographical errors or changes that requires no rulemaking 


Temp. 


= Rule was filed as a temporary rule 


Eff. Date 


= Date rule becomes effective 



NORTH CAROLINA ADMINISTRATIVE CODE 
MAY 96 



[TLE 


DEPARTMENT 


1 


Administration 


2 


Agriculture 


10 


Human Resources 


11 


Insurance 


12 


Justice 


13 


Labor 


15A 


Environment, Health, 




and Natural Resources 



TITLE DEPARTMENT 

16 Public Education 

21 Occupational Licensing Boards 

4 - Commission for Auctioneers 

12 - General Contractors 

22 - Hearing Aid Dealers and Fitters 

37 - Nursing Home Administrators 

45 - Fee-based Practicing Pastoral Counselors 

66 - Veterinary Medical Board 



25 



State Personnel 



RULE CITATION 


AD 


AM 






CORR 


TEMP 


EFFECTIVE 
DATE 


RP 


CHGS 


1 NCAC 29 .0200 










/ 






.0400 










/ 






2 NCAC 9C .0701 - .0702 




/ 








/ 


05/13/96 


.0704 






/ 






/ 


05/13/96 


10 NCAC 15A .01 15 -.01 16 




/ 




/ 






07/01/96 


.0117 - .0118 




/ 




/ 






07/01/96 


.0119 




/ 




/ 






07/01/96 


.0120 - .0127 




/ 




/ 






07/01/96 


.0205 - .0228 






/ 








07/01/96 


19C .0209 










/ 






.0509 










/ 






.0510 










/ 






11 NCAC 12 .0901 


/ 






/ 






06/01/96 


.0918 - .0919 


/ 






/ 






06/01/96 





NORTH CAROLINA REGISTER 



June 14, 1996 



375 







LIST OF RULES CODIFIED 


















RP 


WTTH 
CHGS 


CORK 


TEMP 


EFFECTIVE 
DATE 


RULE CITATION 


AD 


AM 


11 


NCAC 21 .0101 - .0105 


/ 






/ 






06/01/96 


.0106 


/ 












06/01/96 


.0107 - .0110 


/ 






/ 






06/01/96 


12 


NCAC 7D .0808 




/ 




/ 






06/01/96 


13 


NCAC 7F .0101 




/ 










06/03/96 


15A 


NCAC IM .0101 - .0102 


/ 










/ 


06/19/96 


.0201 - .0202 


/ 










/ 


06/19/96 


.0301 - .0306 


/ 










/ 


06/19/96 


2B .0216 




/ 




/ 






06/01/96 


2H .0219 




/ 




/ 






06/01/96 


31 .0019 


/ 






/ 






06/01/96 


3J .0401 




/ 




/ 






06/01/96 


7H .2301 - .2305 


/ 






/ 






06/01/96 


lOB .0116 




/ 




/ 






07/01/96 


.0201 




/ 










07/01/96 


.0203 




/ 




/ 






07/01/96 


.0208 - .0209 




/ 




/ 






07/01/96 


.0214 




/ 




/ 






07/01/96 


.0220 


/ 






/ 






07/01/96 


.0302 




/ 










07/01/96 


.0303 




/ 




/ 






07/01/96 


IOC .0205 










/ 






.0407 










/ 






lOD .0002 - .0003 




/ 




/ 






07/01/96 


13B .1404 










/ 






.1405 










/ 






.1406 - .1409 




/ 




/ 






06/01/96 


21H .0111 




/ 








/ 


06/19/96 


.0113 




/ 








/ 


06/19/96 


16 


NCAC 6A .0001 - .0002 






/ 








06/01/96 


6B .0001 






/ 








06/01/96 


.0005 - .0006 






/ 








06/01/96 





375 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



LIST OF RULES CODIFIED 

























AM 


RP 


WITH 
CHGS 


CORK 


TEMP 


EFFECTIVE 
DATE 


RULE CITATION 




16 


NCAC 6C .0101 




/ 










06/01/96 


.0313 


/ 






y 






06/01/96 


6D .0102 






/ 








06/01/96 


.0104 






/ 








06/01/96 


.0106 


/ 






/ 






06/01/96 


.0301 - .0302 




/ 




/ 






06/01/96 


6E .0101 




/ 




/ 






06/01/96 


.0102 




/ 




/ 






06/01/96 


.0104 




/ 




/ 






06/01/96 


.0202 




/ 




/ 






06/01/96 


6G .0301 - .0302 






/ 








06/01/96 


.0303 




/ 




/ 






06/01/96 


6H .0001 




/ 




/ 






06/01/96 


.0006 - .0007 




/ 




/ 






06/01/96 


.0008 




/ 










06/01/96 


21 


NCAC 4B .0602 










/ 






12 .0204 




/ 








/ 


05/31/96 


.0503 




/ 








/ 


05/31/96 


22L .0015 










/ 






37D .0202 










/ 






.0401 - .0402 










/ 






.0405 










/ 






.0407 










/ 






45 .0201 










/ 






.0301 










/ 






.0501 










/ 






.0701 










/ 






66 .0106 










/ 






.0202 










/ 






.0207 










/ 






.0303 










/ 






25 


NCAC IL .0106 










/ 







i/;(J 



NORTH CAROLINA REGISTER 



June 14, 1996 



377 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. June 20. 1996 q£ 
10:00 a.m. Anyone wishing to submit written comment on any rule before the Commission should submit those comments 
to the RRC staff, the agency, and the Individual Commissioners by Monday. June 17. 1996. at 5:00 p.m. Specific 
In.'itructions and addresses may he obtained from the Rules Review Commission at 9190733-2721. Anyone wishing to 
address the Commission should notify the RRC staff and the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Vemice B. Howard 

Teresa L. Smallwood 

Charles H. Henry 

Philip O. Redwine - Vice Chairman 



Appointed by House 

Jennie J. Hayman - Chairman 
Bill Graham 
Paul Powell 
Ed Shelton 



RULES REVIEW COMMISSION MEETING DATES 



June 20, 1996 
July 18, 1996 
August 15, 1996 
September 19, 1996 



October 17, 1996 
November 21, 1996 
December 19, 1996 



MEETING DATE: JUNE 20, 1996 



FOLLOW UP MATTERS FROM PREVIOUS MEETING: 

Medical Board - 21 NCAC 32H .0702 



AGENCY/DIVISION 



LOG OF FILINGS 
RULES SUBMITTED: APRIL 20, 1996 THROUGH MAY 20, 1996 

RULE NAME 



DHR/DIVISION OF MEDICAL ASSISTANCE 

Notice of Estate Recovery 
Permanently Institutionalized 
Ages 55 and Over 
Reconsideration Review 
Permanently Institutionalized 
Ages 55 and Over 
Filing Claim 
Collection of Claims 
Recovery Not Cost Effective 
Undue Hardship 
Determination of Undue Hardship 



DEHNR/ENVIRONMENTAL MANAGEMENT COMMISSION 



Neuse River Basin 

Definitions 

Compliance with Emission Standards 

Sulfur Dioxide Emissions 

Miscellaneous Volatile Emissions 

Control of Nitrogen Dioxide 

Control and Prohibition 

Control of Visible Emissions 



RULE CITATION 




ACTION 


10 NCAC 50D 


.0101 


Adopt 


10 NCAC 50D 


.0102 


Adopt 


10 NCAC 50D 


.0103 


Adopt 


10 NCAC 50D 


.0201 


Adopt 


10 NCAC 50D 


.0301 


Adopt 


10 NCAC SOD 


.0302 


Adopt 


10 NCAC 50D 


.0401 


Adopt 


10 NCAC 50D 


.0402 


Adopt 


10 NCAC SOD 


.OSOl 


Adopt 


10 NCAC SOD 


.0502 


Adopt 


10 NCAC SOD 


.0503 


Adopt 


ION 

ISA NCAC 2B 


.0315 


Amend 


ISA NCAC 2D 


.0101 


Amend 


ISA NCAC 2D 


.0501 


Amend 


ISA NCAC 2D 


.0516 


Amend 


15A NCAC 2D 


.0518 


Amend 


ISA NCAC 2D 


.0519 


Amend 


ISA NCAC 2D 


.0520 


Repeal 


ISA NCAC 2D 


.0521 


Amend 



378 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



RULES REVIEW COMMISSION 



New Source 


15A NCAC 2D 


.0S24 


Amend 


National Emission Standards 


15A NCAC 2D 


.0525 


Repeal 


Sources 


ISA NCAC 2D 


.0531 


Amend 


Excess Emissions 


ISA NCAC 2D 


.0535 


Amend 


Control of Mercury Emissions 


ISA NCAC 2D 


.0537 


Amend 


Odor Control 


ISA NCAC 2D 


.0539 


Adopt 


Purpose and Scope 


ISA NCAC 2D 


.0601 


Amend 


Sources Covered 


ISA NCAC 2D 


.0604 


Amend 


Program Schedule 


ISA NCAC 2D 


.0608 


Amend 


Airport Facilities 


ISA NCAC 2D 


.0804 


Amend 


Parking Facilities 


ISA NCAC 2D 


.0805 


Amend 


Definitions 


ISA NCAC 2D 


.0901 


Amend 


Applicability 


ISA NCAC 2D 


.0902 


Amend 


Automobile 


ISA NCAC 2D 


.0917 


Amend 


Can Coating 


ISA NCAC 2D 


.0918 


Amend 


Coil Coating 


ISA NCAC 2D 


.0919 


Amend 


Paper Coating 


ISA NCAC 2D 


.0920 


Amend 


Fabric and Vinyl Coating 


ISA NCAC 2D 


.0921 


Amend 


Metal Furniture Coating 


ISA NCAC 2D 


.0922 


Amend 


Surface Coating 


ISA NCAC 2D 


.0923 


Amend 


Magnet Wire Coating 


ISA NCAC 2D 


.0924 


Amend 


Bulk Gasoline Plants 


ISA NCAC 2D 


.0926 


Amend 


Bulk Gasoline Terminals 


ISA NCAC 2D 


.0927 


Amend 


Gasoline Service Stations 


ISA NCAC 2D 


.0928 


Amend 


Petroleum Refinery Sources 


ISA NCAC 2D 


.0929 


Repeal 


Coating 


ISA NCAC 2D 


.0934 


Amend 


Factory Surface Coating 


ISA NCAC 2D 


.0935 


Amend 


Manufacture of Rubber Tires 


ISA NCAC 2D 


.0937 


Amend 


Miscellaneous Volatile Emissions 


ISA NCAC 2D 


.0951 


Amend 


Vapor Return Piping 


ISA NCAC 2D 


.0953 


Amend 


Stage II Vapor Recovery 


ISA NCAC 2D 


.0954 


Amend 


Case-by-Case Maximum 


ISA NCAC 2D 


.1109 


Amend 


National Emission Standards 


ISA NCAC 2D 


.1110 


Adopt 


Maximum Control Technology 


ISA NCAC 2D 


.1111 


Adopt 


Definitions 


ISA NCAC 2D 


.1202 


Amend 


Reporting 


ISA NCAC 2D 


.1204 


Amend 


Emission Standards 


ISA NCAC 2D 


.1205 


Amend 


Operational Standards 


ISA NCAC 2D 


.1206 


Amend 


Purpose 


ISA NCAC 2D 


.1901 


Adopt 


Definitions 


ISA NCAC 2D 


.1902 


Adopt 


Permissible Open Burning 


ISA NCAC 2D 


.1903 


Adopt 


Air Curtain Burners 


ISA NCAC 2D 


.1904 


Adopt 


Regional Office Locations 


ISA NCAC 2D 


.1905 


Adopt 


Delegation 


ISA NCAC 2D 


.1906 


Adopt 


Permit Requirements 


ISA NCAC 2H 


.0610 


Amend 


Definitions 


ISA NCAC 2Q 


0103 


Amend 


Compliance Schedule 


ISA NCAC 2Q 


0109 


Amend 


Applicability 


ISA NCAC 2Q 


0201 


Amend 


Definitions 


ISA NCAC 2Q 


0202 


Amend 


Permit & Application Fees 


ISA NCAC 2Q 


0203 


Amend 


Inflation Adjustment 


ISA NCAC 20 


0204 


Amend 


Annual Emissions Reporting 


ISA NCAC 2Q 


0207 


Amend 


Facilities 


ISA NCAC 2Q 


0302 


Amend 


Permitting of Facilities 


ISA NCAC 2Q 


0311 


Amend 


Purpose of Section 


ISA NCAC 2Q 


0501 


Amend 


Applicability 


ISA NCAC 2Q 


0502 


Amend 


Definitions 


ISA NCAC 2Q 


0503 


Amend 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



379 



RULES REVIEW COMMISSION 



Application 

Permit Content 

Case-by-Case MACT Procedures 

DEHNR/COMMISSION FOR HEALTH SERVICES 

Definitions 



15A NCAC 2Q .0507 Amend 

15A NCAC 2Q .0508 Amend 

15A NCAC 2Q .0526 Adopt 



15A NCAC 18A .2701 Amend 



NC BOARD OF PHARMACY 

Office of the Board 
Examination 
Pharmacy Permits 
License by Reciprocity 
Out-of-State Pharmacies 
Excessive Dispensing 
Certificate of Experience 
Committee on Nominations 
Drugs and Devices 
Responsibilities 
Patient Counseling 

NC PSYCHOLOGY BOARD 

Fees 

Issuance of License 
Certificate of Registration 
Renewal of Certificate 

NC REAL ESTATE COMMISSION 

Agency Agreements 

Handling and Accounting 

Reporting Criminal Convictions 

Filing and Fees 

Time and Place 

Subject Matter 

Business Entities 

License Renewal 

Active and Inactive 

Reinstatement 

Salesman to be Supervised 

Cancellation 

Subpoenas 

Continuing Education 

Scope 

Course Scheduling 

Textbooks 

Real Estate Instructors 

Instructional Delivery Methods 

Exception 

Application 

Renewal of Approval 

Elective Course 

Criteria 

Instructional Delivery Methods 

Course Completion Reporting 

Per Student Fee 

Renewal of Course 

Minimum Class Size 

Student Participation Standards 



21 


NCAC 46 .1204 


Amend 


21 


NCAC 46 .1505 


Amend 


21 


NCAC 46 .1601 


Amend 


21 


NCAC 46 .1602 


Amend 


21 


NCAC 46 .1607 


Amend 


21 


NCAC 46 .1811 


Adopt 


21 


NCAC 46 .1910 


Repeal 


21 


NCAC 46 .2104 


Amend 


21 


NCAC 46 .2403 


Amend 


21 


NCAC 46 .2502 


Amend 


21 


NCAC 46 .2504 


Amend 


21 


NCAC 54 .1605 


Amend 


21 


NCAC 54 .1705 


Amend 


21 


NCAC 54 .2202 


Amend 


21 


NCAC 54 .2203 


Amend 


T 1 


NCAC 58A .0104 


Amend 


-> 1 


NCAC 58A .0107 


Amend 


21 


NCAC 58A .0113 


Adopt 


21 


NCAC 58A .0302 


Amend 


21 


NCAC 58 A .0401 


Amend 


21 


NCAC 58A .0402 


Amend 


21 


NCAC 58A .0502 


Amend 


21 


NCAC 58A .0503 


Amend 


21 


NCAC 58A .0504 


Amend 


21 


NCAC 58A .0505 


Amend 


21 


NCAC 58A .0506 


Amend 


21 


NCAC 58A .0510 


Adopt 


21 


NCAC 58A .0610 


Amend 


21 


NCAC 58 A .1702 


Amend 


21 


NCAC 58C .0104 


Amend 


21 


NCAC 58C .0305 


Amend 


1 1 


NCAC 58C .0306 


Amend 


21 


NCAC 58C .0307 


Amend 


21 


NCAC 58C .0311 


Adopt 


21 


NCAC 58C .0312 


Adopt 


21 


NCAC 58E .0203 


Amend 


21 


NCAC 58E .0204 


Amend 


21 


NCAC 58E .0302 


Amend 


21 


NCAC 58E .0304 


Amend 


21 


NCAC 58E .0310 


Adopt 


21 


NCAC 58E .0406 


Amend 


21 


NCAC 58E .0407 


Amend 


21 


NCAC 58E .0411 


Amend 


21 


NCAC 58E .0503 


Amend 


21 


NCAC 58E .0511 


Amend 



380 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



RULES REVIEW COMMISSION 



RULES REVIEW OBJECTIONS 



ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Resources Commission 

15 A NCAC 7H .0208 - Use Standards 
Agency Revised Rule 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

15A NCAC 7H .2303 - Permit Fee 

Agency Revised Rule 
15A NCAC 7H .2305 - Specific Conditions 

Agency Revised Rule 

Environmental Management 

15 A NCAC 2B .0216 - Fresh Surface Water Quality Standards for Ws-iv Waters 

Agency Revised Rule 
15A NCAC 2H .0219 - Minimum Design Requirements 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 

Commission for Health Services 

15A NCAC 13B .1406 - Operational Requirements for Solid Waste Compost Facilities 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 13B .1407 - Classification/Distribution of Solid Waste Compost Products 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 13B . 1408 - Methods for Testing and Reporting Requirements 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 13B . 1409 - Approval of Alternative Procedures and Requirements 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 

Wildlife Resources Commission 

15A NCAC WD .0003 - Hunting on Game Lands 
Agency Revised Rule 

HUMAN RESOURCES 



RRC Objection 




03/21/96 


Obj. Cont'd 




03/21/96 


Obj. Cont'd 




04/18/96 




Eff 


05/01/96 


RRC Objection 




05/16/96 


Obj. Removed 




05/16/96 


RRC Objection 




05/16/96 


Obj. Removed 




05/16/96 


RRC Objection 




05/16/96 


Obj. Removed 




05/16/96 


RRC Objection 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff 


06/01/96 


RRC Objection 




04/18/96 


Obj. Cont'd 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff 


06/01/96 


RRC Objection 




04/18/96 


Obj. Cont'd 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff 


06/01/96 


RRC Objection 




04/18/96 


Obj. Cont'd 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff 


06/01/96 


RRC Objection 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff 


06/01/96 


RRC Objection 




05/16/96 


Obj. Removed 




05/16/96 



Medical Care Commission 

10 NCAC 3C .5401 - Definitions RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 

10 NCAC 3C .5402 - Physician Req for Inpatient Rehabilitation Facilities or Units RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 

10 NCAC 3C .5407 - Comprehensive Rehabilitation Personnel Administration RRC Objection 01/18/96 

Agency Responded Obj. Cont'd 02/15/96 

Rule Returned to Agency Obj. Cont'd 03/21/96 

Agency Filed Rule for Codification Over RRC Objection Eff. 05/01/96 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



381 



RULES REVIEW COMMISSION 



10 NCAC 3C .5408 - Comprehensive Inpatient Rehabilitation Program Staffing Req. RRC Objection 

Agency Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont'd 
Agency Filed Rule for Codification Over RRC Objection 

10 NCAC 3C .5409 - Staff Training for Inpatient Rehabilitation Facilities or Unit RRC Objection 

Agenc\ Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont'd 
Agency Filed Ride for Codification Over RRC Objection 

10 NCAC 3C .5412 - Additional Requirements for Traumatic Brain Injury Patients RRC Objection 

Agency Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont'd 
Agency Filed Rule for Codification Over RRC Objection 

10 NCAC 3C .5413 - Additional Requirements for Spinal Cord Injury Patients RRC Objection 

Agency Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont'd 
Agency Filed Ride for Codification Over RRC Objection 

Commission for Mental Health, Developmental Disabilities and Substance Abuse Services 

10 NCAC 15A .0126 - Resolution of Differences of Opinion RRC Objection 

Agency Revised Rule Obj. Removed 

JUSTICE 



01/18/96 
02/15/96 
03/21/96 

Eff 05/01/96 
01/18/96 
02/15/96 
03/21/96 

Eff 05/01/96 
01/18/96 
02/15/96 
03/21/96 

Eff 05/01/96 
01/18/96 
02/15/96 
03/21/96 

Eff 05/01/96 



05/16/96 
05/16/96 



Private Protective Services 

12 NCAC 7D .0808 - Concealed Weapons 
No Response from Agency 
Agency Revised Rule 

MARITAL AND FAMILY THERAPY CERTIFICATION BOARD 

21 NCAC 31 .0304 - Subsequent Reexaminations 
No Response from Agency 
Rule Withdrawn by Agency 

MEDICAL BOARD 

21 NCAC 32H .0702 - Requests 
No Response from Agency 

PUBLIC EDUCATION 

State Board of Education 

16 NCAC lA .0003 - Organization of Department 

Agency Repealed Rule 
16 NCAC 6D .0106 - Limited English Proficiency Programs 

No Response from Agency 

Agency Revised Rule 
16 NCAC 6H .0007 - Special Education Assessment and Placement Procedures 

Agency Revised Rule 



RRC Objection 
Obj. Cont'd 
Obj. Removed 



RRC Objection 
Obj. Cont'd 
Obj. Cont'd 



RRC Objection 
Obj. Cont'd 



03/21/96 
04/18/96 
05/16/96 



02/15/96 
03/21/96 
04/18/96 



04/18/96 
05/16/96 



RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 


RRC Objection 


03/21/96 


Obj. Cont'd 


04/18/96 


Obj. Removed 


05/16/96 


RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 



382 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



CONTESTED CASE DECISIONS 



This Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the 
Office of Administrative Hearings, (919) 733-2698. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 
JUUAN MANN, m 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRATIVE LAW JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores Nesnow Smith 
Thomas R. West 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 



Fuad SaifMurehed V. Ale. Bev. Ql. Comm. & Durham Mem. Bapt. Ch. 95 ABC 0922 Chess 04/24/96 

Alcoholic Beverage Control Commission v. Tremik, Inc. 95 ABC 0925 Morriosn 03/25/96 

Alcoholic Beverage Control Commission v. Maria Virginia Tramontano 95 ABC 1200 West 04/23/96 

Alcoholic Beverage Control Commission v. Huffman Oil Co., Inc. 95 ABC 1251 West 04/03/96 

Pinakin P. Talate v. Alcoholic Beverage Control Commission 95 ABC 1329 West 04/10/96 

Alcoholic Beverage Control Commission v. Entrepreneur. Inc. 95 ABC 1363 Reilly 05/02/96 

Alcoholic Beverage Control Commission v. Henry Franklin Gurganus 95 ABC 1389 West 04/01/96 

Andrew Parker v. Alcoholic Beverage Control Commission 95 ABC 1402 Phipps 03/27/96 

Barraq Sabri Alquza v. Alcoholic Beverage Control Commission 95 ABC 1424 Phipps 04/03/96 

Alcoholic Beverage Control Comm. v. Partnership T/A T & L Groceries 95 ABC 1443 West 03/26/96 

Alcoholic Beverage Control Commission v. Cashion's Food Mart, Inc. 95 ABC 1444 Gray 03/13/96 

Bro Bee, Inc. v. Alcoholic Beverage Control Commission 95 ABC 1480 West 04/15/96 

Alcoholic Beverage Control Commission v. Donald Ray Doak 95 ABC 1488 West 03/29/96 

Alcoholic Beverage Control Commission v. Janice Lorraine Jeter 96 ABC 0013 Reilly 04/26/96 

Alcoholic Beverage Control Commission v. Well Informed, Inc. 96 ABC 0016 Chess 05/28/96 

Alcoholic Beverage Control Commission v. Kuhbard. Inc. 96 ABC 0017 Reilly 05/20/96 

Alcoholic Beverage Control Commission v. Slemmermans's, Inc. 96 ABC 0018 Chess 05/28/96 

George Wright and Alice Ramsuer v. Alcoholic Beverage Control Comm. 96 ABC 0058 Becton 04/16/96 

Alcoholic Beverage Control Commission v. Robert Montgomery McKnight96 ABC 0135 Phipps 05/09/96 

Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony 96 ABC 0184 Phipps 05/09/96 

Ghassan Hasan Issa v. Alcoholic Beverage Control Commission 96 ABC 0256 Morrison 05/23/96 



11:03 NCR 166 



COMMISSION FOR AUCTIONEERS 



John W. Foster v. Auctioneer Licensing Board 
CRIME CONTROL AND PUBLIC SAFETY 



96 CFA 0201 



Phipps 



05/06/96 



Roland Lee Kelly, Jr. v. United Family Services, Victim Assistance/Crime 95 CPS 0568 

Victims Compensation Comm. 
Robert F. Bronsdon v. Crime Victims Compensation Commission 95 CPS 1216 

Helen B. Hunter-Reid v. Crime Victims Compensation Commission 95 CPS 1336 



Morrison 


05/29/96 






Chess 


05/28/96 






Nesnow Smith 


03/29/96 


11:02 NCR 


93 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



383 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 

NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Kennelii Saunders v. Victims Compensation Commission 95 CPS 1445 Chess 

Ruby H. Ford v. Crime Victims Compensation Commission 96 CPS 0110 Reilly 

Manuel Cervantes v. Victims Compensation Fund 96 CPS 0118 Chess 

ENVIRONMENT. HEALTH, AND NATURAL RESOURCES 



03/26/96 
04/18/96 
03/19/96 



Gribble &. Assoc. & Four Seasons Car Wash \'. EHNR 

David Martin Shelton v. Rockingham County Dept/Public Health, EHNR 95 EHR 0941 

Kinston Urological Associates, P. A. v. N.C. Cancer Progi^m 

Kinston Urological Associates, P. A. v. N.C. Cancer Program 

Elsie &. Tony Cecchini v. Environment, Health, & Natural Resources 

Gerald Mac Clamrock v. Environment, Health, & Natural Resources 



95 EHR 0576 


Gray 


04/25/96 






95 EHR 0941 


West 


05/01/96 






95 EHR 1198*= 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1199*- 


Ncsnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1240 


Reilly 


04/22/96 






96 EHR 0168 


Phipps 


05/06/96 







Coastal Resources 

Manin W. Synger V. Division of Coasul Management 95 EHR 1006 Chess 05/13/96 

J. E. Smith Construction Co. V. Division of Coastal Management 96 EHR 0074 Nesnow Smith 02/23/96 

Theodore D. Bairis v. Town of Long Beach, NC &. Coasul Mgmt, EHNR 96 EHR 0277 West 05/09/96 

Environmental Health 



Paradise Ridge Home Owners by Anne Norbum v. EHNR, Env. Health 96 EHR 0162 Phipps 

Environmental Management 

Herman E. Smith v. Division of En\ironmental Management 95 EHR 0962 West 

Conover Lumber Co., Inc. v. EHNR. Division of Environmental Mgmt. 95 EHR 1081 Reilly 

Jack West d/b/a Jack West Tree Service v. Environmental Mgmt. Comm. 95 EHR 1421 Morrison 



05/06/96 



04/30/96 
04/12/96 
04/08/96 



Land Resources 

K&iG Properties, Inc. v. EHNR, Division of Land Resources 

Marine Fisheries 



95 EHR 1078 



Nesnow Smith 



03/25/96 



Robert 1. Swinson, Sr. v. EHNR, Health & Nat. Res., Marine Fisheries 95 EHR 0320 
Grayden L. Fulcher and Michael Styron, Sr. v. Div. of Marine Fisheries 96 EHR 0003 



Solid yr'asze Management 



R. Donald Phillips 
R. Donald Phillips ■ 

Vf'lC Fro gram 



EHNR, Solid \V'aste Management Division 
EHNR. Solid Waste Management Division 



95 EHR 1190*^ 

96 EHR 0554*^ 



95 EHR 0870 

96 EHR 0054 
96 EHR 0091 



Lazclle Marks v. EHNR, Division of Maternal and Child Health 

Hani Sader v. Nutrition Services, Div/Materaal &. Child Health, EHNR 

Bob's Quick Mart, Bobby D. Braswell v. Env., Health, & Natural Res. 

Larry E. Mis v. USDA-Food/Cons Svc, Cory Menees-WC Prog., EHNR 96 EHR 0164 

EQUAL EMPLOYMENT OPPORTUNITIES 



Chess 
Reilly 



Gray 
Gray 



West 
West 

Nesnow Smith 
Phipps 



03/29/96 
03/06/96 



05/22/96 
05/22/96 



03/27/96 
05/22/96 
04/02/96 
03/19/96 



11:03 NCR 168 



Carl D. Da\is v. Department of Correction 
HUMAN RESOLTtCES 



91 EEO 1101 Ncsnow Smith 



05/06/96 



Cassandra M. Deshazo v. Christine E. Carroll, Chf Chid Abuse/Neg. Sec. 95 DHR 1410 Phipps 03/28/96 

Medicus Robinson v. Department of Human Resources 96 DHR 0167 Nesnow Smith 04/12/96 



Division of Child Development 

Molly Fallin v. Department of Human Resources 
Molly Fallin v. Department of Human Resources 
Maiy T. Hill v. DHR, Division of Child Development 
lola Roberson v, DHR, Division of Child Development 



94 DHR 0S72*' Gray 

95 DHR 1013*^ Gray 
95 DHR 1192 Phipps 
95 DHR 1244 Gray 



05/15/96 
05/15/96 
03/27/96 
05/16/96 



384 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 

DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Division of Facility Services 

Eloise Brown v. Dept. of Human Resources, Division of Facility Services 95 DHR 1002 Phipps 

Certificate of Need Section 

Nash Hospitals, Inc. v. DHR, Div/Facility Services, Cert, of Need Sect. 95 DHR 1176*^ Phipps 
Pitt Qy Mem. Hospital, Inc. v. DHR, Div/Facility Sries, Cert/Need Sect. 95 DHR 1177*^ Phipps 

Group Care Licensure Section 
Alex L. McCall v. DHR, Div/Facilily Svcs, Group Care Licensure Sec. 95 DHR 1456 Nesnow Smith 

Medical Facilities Licensure Section 
Stacey Yvette Franklin v. Facility Services, Medical Facilities Lie. Sec. 96 DHR 0358 Morrison 



Division of Social Services 

Rozena Chambliss v. Department of Human Resources 95 DHR 1044 

Addie &. Major Short v. Department of Human Resources 95 DHR 1063 

Mr, and Mrs. Jessie Stevenson v. DHR, Division of Social Services 95 DHR 1072 
William G. Fisher v. DHR, Div. of Social Services. Prog Integrity Branch 95 DHR 1234 

Vema F. Nunn v. Department of Human Resources 95 DHR 1330 

Nancy Hooker, Helen Tyndall v. Department of Human Resources 96 DHR 0155 



Child Support Enforcement Section 

Donald E. Rideout Jr. v. Department of Human Resources 
Christopher F. Roakes v. Department of Human Resources 
Richard R. Fox, Sr. v. Department of Human Resources 
Joselito D. Pilar v. Department of Human Resources 
David Lee Grady v. Department of Human Resources 
Patrick Orlando Crump v. Department of Human Resources 
Peter Robert Kovolsky v. Department of Human Resources 
Tony Lee Zapata v. Department of Human Resources 
Lawrence Dow Dean v. Department of Human Resources 
Carl E. Coffey v. Department of Human Resources 
Keith Dewayne Senters v. Department of Human Resources 
Mickey Turner v. Department of Human Resources 
James Joseph Gallagher v. Department of Human Resources 
James Thomas McRae v. Department of Human Resources 
Vincent E. Koehler v. Department of Human Resources 
David J. Moseley v. Department of Human Resources 
Derrick L. Conyers v. Department of Human Resources 
Charles Edward Smith v. Department of Human Resources 
Kevin Vereen v. Department of Human Resources 
James Curtis Witwcr v. Department of Human Resources 
Thomell Bowden v. Department of Human Resources 
Henry S. Sada v. Department of Human Resources 
Charles F. Moore v. Department of Human Resources 
Daniel Leslie Baker v. Department of Human Resources 
John L. Pike v. Department of Human Resources 
Wm. R. Evans v. Department of Human Resources 
Rory J. Curry v. Department of Human Resources 
Lorin A. Brown v. Department of Human Resources 
Marcus Anthony Butts v. Department of Human Resources 
Cynthia Pinder v. Department of Human Resources 
Rhonnie J. Williams v. Department of Human Resources 
Ramon Domenech v. Department of Human Resources 
Dennis L. McNeill v. Department of Human Resources 
Tony A. Rogers v. Department of Human Resources 
Rick E. Atkins v. Department of Human Resources 
Timothy A. Ratley (Jcanes) v. Department of Human Resources 
Richard E. Reader v. Department of Human Resources 
Wilbur Dewayne Bault v. Department of Human Resources 
James C. Smith v. Department of Human Resources 
Ronald D. Johnson v. Department of Human Resources 



Nesnow Smith 

Morrison 

Phipps 

Morrison 

Gray 

Gray 



03/07/96 



05/23/96 
05/23/96 



03/26/96 



05/16/96 



03/12/96 
03/19/96 
03/15/96 
03/19/96 
04/11/96 
04/26/96 



95 CSE 0952 


Reilly 




04/18/96 


95 CSE 


1131 


Becton 




05/03/96 


95 CSE 


1169 


Beclon 




03/19/96 


95 CSE 


1180 


Chess 




03/01/96 


95 CSE 


1218 


Morrison 




03/26/96 


95 CSE 


1221 


Nesnow S 


oiith 


03/05/96 


95 CSE 


1230 


Beclon 




03/11/96 


95 CSE 


1266 


Gray 




05/02/96 


95 CSE 


1267 


Morrison 




03/29/96 


95 CSE 


1270 


Nesnow S 


-nith 


03/15/96 


95 CSE 


1273 


Phipps 




04/01/96 


95 CSE 


1278 


Nesnow S 


Tlith 


03/14/96 


95 CSE 


1280 


Chess 




03/19/96 


95 CSE 


1296 


Chess 




03/15/96 


95 CSE 


1301 


Phipps 




05/09/96 


95 CSE 


1304 


Chess 




03/29/96 


95 CSE 


1308 


Reilly 




03/13/96 


95 CSE 


1309 


West 




03/07/96 


95 CSE 1315 


Phipps 




05/06/96 


95 CSE 


1331 


Becton 




03/26/96 


95 CSE 


1345 


Morrison 




03/07/96 


95 CSE 


1367 


Nesnow Smith 


03/21/96 


95 CSE 


1369 


Chess 




03/27/96 


95 CSE 


1373 


Morrison 




03/12/96 


95 CSE 


1376 


Nesnow Smith 


03/21/96 


95 CSE 


1377 


Becton 




03/11/96 


95 CSE 


1380 


Mann 




03/15/96 


95 CSE 


1382 


Reilly 




04/18/96 


95 CSE 


1405 


Nesnow Smith 


03/27/96 


95 CSE 


1406 


Becton 




03/11/96 


95 CSE 


1407 


Chess 




05/06/96 


95 CSE 


1408 


Phipps 




03/11/96 


95 CSE 


1435 


Becton 




03/13/96 


95 CSE 


1436 


Chess 




05/16/96 


95 CSE 


1437 


Phipps 




04/01/96 


95 CSE 


1465 


Morrison 




03/26/96 


95 CSE 


1469 


Nesnow Smith 


04/29/96 


95 CSE 


1475 


West 




03/13/96 


96 CSE 0034 


Gray 




05/10/96 


96 CSE 0084 


Nesnow Smith 


03/27/96 



11;06 NCR 
11:06 NCR 



389 
389 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



385 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 

NUMBER AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Johnny Lear>- v. Department of Human Resources 

John W. Scoll V. Department of Human Resources 

Calvin S. Austin v. Department of Human Resources 

Derek Henslee v. Department of Human Resources 

Donald L. Carr. Jr. v. Department of Human Resources 

Norman Waycasler v. Department of Human Resources 

Lorenzo Wilson v. Department of Human Resources 

Cyril Lloyd Payne v. Department of Human Resources 

TTiomell Bowden v. Department of Human Resources 

Carl R. Ritter v. Department of Human Resources 

Kelvin Tarlton v. Department of Human Resources 

Terry Sealey v. Department of Human Resources 

Alan Kendell Locklear v. Department of Human Resources 

Melinda S. Tunner v. Department of Human Resources. Child Sup. Enf. 

Jeanne G. Bishop v. Department of Human Resources. Child Sup. Enf. 

Rebecca Beaver v. Department of Human Resources, Child Sup. Enf- 

Laura Heidorf v. Department of Human Resources, Child Support Enf, 

INSURANCE 



Carol NL Hall v. Teachers & Slate Employees Comp. Major Medical Plan 95 INS 1141 
Arthur ^'ayne Dempsey v. Department of Insurance 95 INS 1255 

Deborah B. Beavers v. Teachers &. St. Emp. Comp. Major Med. Plan 95 INS 1411 

Nadia A. Hakim v. Department of Insurance 95 INS 1422 

JUSTICE 

Education and Training Standards Division 

Freddie Levem Tliompson v. Criml. Justice Ed. Si Training Slds. Comm. 
Shane Douglas Crawford v. Sheriffs' Ed. & Training Stds. Comm. 
Valerie Maxine Brewington v. Criml. Justice Ed. & Training Stds. Comm. 
Patricia Josephine Bonanno v. Sheriffs' Ed. &, Training Stds. Comm. 
Rick M. Evoy v. Criminal Justice Ed. & Training Stds. Comm. 
Gregory Lee Daughtridge v. Sheriffs' Ed. & Training Stds. Comm. 
Carlton Gerald v. Criminal Justice Ed. & Training Stds. Comm. 
Ken Montie Oxendine v. Criminal Justice Ed. &. Training Stds, Comm. 
David Kent Knight v. Sheriffs' Ed. &. Training Slds. Comm. 

Frivaxe Protective Services Board 



96 CSE 0085 


Beclon 


96 CSE 0130 


Mann 


96 CSE 0140 


Phipps 


96 CSE 0188 


Reilly 


95 CSE 0200 


West 


96 CSE 0245 


Bccton 


96 CSE 0257 


Phipps 


96 CSE 0272 


Reilly 


96 CSE 0370 


Morrison 


96 CSE 0380 


West 


96 CSE 0424 


Morrison 


96 CSE 0430 


Phipps 


96 CSE 0503 


West 


95 DCS 0921 


Morrison 


95 DCS 0958 


West 


95 DCS 1114 


Reilly 


96 DCS 0065 


Reilly 



Phipps 

Nesnow Smith 
Nesnow Smith 
Nesnow Smith 



05/03/96 
03/15/96 
05/17/96 
05/17/96 
05/30/96 
05/16/96 
05/06/96 
05/31/96 
05/17/96 
05/08/96 
05/29/96 
05/29/96 
05/30/96 
05/09/96 
04/04/96 
04/26/96 
03/22/96 



04/01/96 
04/22/96 
05/10/96 
03/26/96 



95 DOJ 0731 


Chess 


02/29/96 


95 DOJ 0943 


Reilly 


05/17/96 


95 DOJ 1129 


Nesnow Smith 


04/12/96 


95 DOJ 1152 


Chess 


03/25/96 


95 DOJ 1235 


Chess 


03/25/96 


96 DOJ 0027 


Reilly 


03/19/96 


96 DOJ 0068 


Gray 


03/26/96 


96 DOJ 0071 


West 


03/28/96 


96 DOJ 0115 


West 


03/28/96 



11:05 NCR 308 



Timothy A. Hawkins v. Private Protective Services Board 
William F. Combs v. Private Protective Services Boani 



95 DOJ 1419 

96 DOJ 0022 



West 
West 



04/12/96 
03/22/96 



PUBLIC INSTRUCTION 

Lavem K. Suggs v. NC Board of Education 

J.T.S. & T,S., Parents of E.M.S. v. Chapel Hill-Carrboro City Schl. 

L.O. v. Charlotte-Mecklenburg Board of Education 

Candyce Ewanda Newsome v. Hertford County Board of Education 

STATE PERSONNEL 



Sys 



95 EDC 0383 


Nesnow Smith 


03/13/96 


95 EDC 1194 


Mann 


04/12/96 


96 EDC 0285 


Mann 


05/31/96 


96 EDC 0344 


Chess 


05/15/96 



11:01 NCR 50 



Department of AdminisJrasion 

Jonathan L. Fann v. Department of Administration, Admin. Personnel 96 OSP 0042 

Carlton Gerald v. State Capilol Police, Department of Administration 96 OSP 0116 

Administrative Office of the Court 

Eihel R. Tyson v. NC Judicial Dept., Administrative Office of the Court 96 OSP 0080 

Appalachian Stale University 

Janice S. Walton v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0062 
Janice S. Carroll v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0063 



Gray 
Gray 



Nesnow Smith 



West 
West 



05/24/96 
04/25/96 



03/15/96 



03/13/96 

03/07/96 



3S6 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



CONTESTED CASE DECISIONS 



96 OSP 0047 



95 OSP 1432 



95 OSP 1241 



96 OSP 0269 



CASE 
AGENCY NUMBER 

Caldwell County 

Blake C. Pace v. Caldwell County 

NC Central University 

Francina Y. Tale v. Chancellor Julius L. Chambers, NC Central Univ. 

Central North Carolina School for the Deaf 

Felicia S. Milton v. Central North Carolina School for the Deaf 

Cherry Hospital 

Mary A. Boogaerts v. Cherry Hospital, Goldsboro, NC 

Department of Correction 

Haydee Craver v. Department of Correction, Pender Correctional Inst. 95 OSP 1046 
Gregory Allen Jonee v. Department of Correction, Supl. Bonnie Boyette 95 OSP 1290 
Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 95 OSP 1460 
Brenda Propst v. Foothills Correctional Inslilution 96 OSP 0199 

Haydee C. Craver v. Department of Correction, Christopher Phillips 96 OSP 0348 

East Carolina University 

Bela E. Karvaly, Ph.D. v. ECU Bd. of Trustees, Ch. Richarxl R. Eakin 96 OSP 0150 

Employment Security Commission 

Gene S. Baker v. Gov. James B. Hunt, Jr., Ann Q. Duncan, Chairman, 93 OSP 0707 

Employment Security Commission 

Patricia Gary v. Employment Security Commission 95 OSP 0793 

Tonderlier Lynch v. Emp. Security Comm., Austin Quality Foods, Inc. 96 OSP 0275 

Department of Environment, Health, and Natural Resources 

Roberta Ann "Robin" Hood v. Environment, Health, & Natural Resources 95 OSP 0035 

Fayetteville State University 

William C. Ncal v. Fayetteville Stale University 95 OSP 0392 

Department of Hutnan Resources 

Ophelia Webb v. Edard R. Inman, Dir. Alamance Cty DSS, Alamance 96 OSP 0112 
Cty DSS, Alamance County, and DHR 

Caswell Center 

Ramona C. Jenkins v. Department of Human Resources, Caswell Center 89 OSP 041 1 
Ramona C. Jenkins v. Department of Human Resources, Caswell Center 91 OSP 0522 
Franklin D. Sutton v. Department of Human Resources, Caswell Center 94 OSP 0766 

Durham County Department of Social Services 
Jan E. Smith v. Durham County Department of Social Services 95 OSP 1121 

Halifax County Department of Social Services 
Clairbel Thomas v. Halifax County DSS &. Director, Halifax County DSS 95 OSP 0905 

Wake County Department of Social Services 
Phylls Gilbert v. Wake County Department of Social Services 95 OSP 1238 



ALJ 



Morrison 



Nesnow Smith 



Chess 



Becton 



Chess 



Becton 



Chess 
Chess 



Reilly 



Nesnow Smith 



Gray 



Becton 

Becton 
Nesnow Smith 



Morrison 



West 



Phipps 



DATE OF 
DECISION 



04/01/96 



04/22/96 



05/17/96 



05/29/96 



Gray 


03/12/96 


Phipps 


05/14/96 


Gray 


05/17/96 


Morrison 


04/09/96 


Phipps 


05/15/96 



05/08/96 



05/16/96 



05/14/96 
05/21/96 



04/09/96 



04/22/96 



03/13/96 



03/26/96 
03/26/96 
03/21/96 



05/24/96 



05/29/96 



05/17/96 



PUBLISHED DECISION 
REGISTER CITATION 



11:05 NCR 300 



11:02 NCR 89 



11:06 NCR 395 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



387 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Department of Labor 

Kevin P. Kolbe, Sr. v. Department of Labor 

New Hanover County Board of Health 

Tabandeh Zand v. New Hanover County Board of Health 

North Carolina State University 

Vemell Mitchell v. North Carolina Cooperative Extension 

Department of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Dorothy J. Grays v. Div. of Motor Vehicles, Dept. of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Melvin Duncan v. Department of Transportation 

Greg Brown v. Department of Transportation 

Jesse Wayne Castle v. State Highway Maint., Guess Rd., Durham, NC 

Archie Brooks v. W. F. Rosser, Department of Transportation 

Tri-County Mental Health Complex 

Deborah Heil v. Tri-County Mental Health Complex 

University of North Carolina 

Jerel H^ Bonner v. School of Nursing UNC at Chapel Hill 

Bela E. Karvaly. PhD v. UNC Bd. of Gov., Pres. CD. Spangler, Jr. 

UNIVERSITY OF NORTH CAROLINA 

Sylvia Jeffries v. University of NC Hospitals at Chapel Hill 



95 OSP 0968 Morrison 



95 OSP 1035 



96 OSP 0132 



Nesnow Smith 



Gray 



95 OSP 1100 



Nesnow Smith 



96 OSP 0026 Gray 

96 OSP 0151 Chess 



96 UNC 0067 Gray 



03/14/96 



03/01/96 



05/10/96 



94 OSP 0589-' 


Gray 


03/01/96 


94 OSP 1044 


Reilly 


04/12/96 


95 OSP 0837*' 


Gray 


03/01/96 


95 OSP 1462 


Morrison 


03/08/96 


96 OSP 0048 


Reilly 


05/02/96 


96 OSP 0087 


Gray 


04/15/96 


96 OSP 0239 


Nesnow Smith 


05/17/96 



03/22/96 



03/12/96 
05/08/96 



04/16/96 



11:01 NCR 58 



11:03 NCR 173 



11:01 NCR 61 



Consolidated cases. 



388 



NORTH CAROLINA REGISTER 



June 14, 1996 



11:6 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF NASH 



IN THE OFFICE OF 
ADMINISTRATTVE HEARINGS 



NASH HOSPITALS, INC. D/B/A 
NASH GENERAL HOSPITAL 
Petitioner, 



N.C. DEPARTMENT OF HUMAN RESOURCES 
DIVISION OF FACILITY SERVICE 
CERTIFICATE OF NEED SECTION 
Respondent. 

and 

WAKE COUNTY HOSPITAL SYSTEM, INC. 
D/B/A WAKE MEDICAL CENTER 
Intervenor-Respondent 



95 DHR 1176 



PITT COUNTY MEMORIAL HOSPITAL, INC. 
Petitioner, 



V. 



N.C. DEPARTMENT OF HUMAN RESOURCES, 
DIVISION OF FACILITY SERVICES 
CERTIFICATE OF NEED SECTION 
Respondent. 

and 

WAKE COUNTY HOSPITAL SYSTEM, INC. 
D/B/A/ WAKE MEDICAL CENTER 
Intervenor-Respondent 



95 DHR 1177 



RECOMMENDED DECISION 

THIS MATTER came on to be heard before Administrative Law Judge Meg Scott Phipps on April 12, 1996 in 
Raleigh, North Carolina upon consideration of the following motions: 1) Petitioner's Motion for Partial Summary Judgment; 
2) Respondent's Motion for Summary Judgment; and 3) Respondent-Inteivenor's Motion for Summary Judgment. Responses 
were appropriately filed by all parties. 

APPEARANCES 



For Petitioners: 

For Respondent: 

For Respondent-Intervenor: 



Dean M. Harris 

Joy H. TTiomas 

Moore & Van Allen, PLLC 

Sherry C. Lindquist 

N.C. Department of Justice 

Maureen D. Murray 

Terrill Johnson Harris 

Smith, Helms, Mulliss & Moore, 



LLP 



11:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



389 



CONTESTED CASE DECISIONS 



ISSUES 

1. Under the 1995 State Medical Facilities Plan ("SMFP"), can a health service facility that currently provides 
open heart surgery services expand its existing services at a satellite location which is located forty miles away from the 

ser\'ice? 

2. Did the Respondent exceed its authority and jurisdiction, act erroneously, fail to use proper procedure, act 
arbitrarily and capriciously, or fail to act as required by rule or law when it made a finding that Petitioner's project was not 
in actuality an expansion of Pitt Memorial Hospital's existing open heart surgery services? 

3. Is Petitioner's project an expansion of its existing health services provided at Pitt Memorial Hospital? 

Based upon the undisputed facts, the exhibits, the able arguments of counsel and the law, the undersigned makes 
the following: 

STATEMENT OF UNDISPUTED FACTS 

I. The Parties 

1. Pitt Memorial Hospital, Inc. ("Pitt") is located in Greenville, North Carolina and is associated with the ECU 
Medical School ("ECU"). It is a not-for-profit hospital owned by Pitt County. Pitt presently provides open heart surgery 
ser\'ices at or above 80% capacity. Pitt has three open heart operating rooms and four heart-lung bypass machines. One 
heart-lung machine is used for back-up services and a fifth machine is located at ECU for research. 

2. Nash Hospitals, Inc. ("Nash") is also a not-for-profit hospital located approximately forty miles away from 
Pitt Memorial Hospital in another county. Nash does not provide open heart surgery services but does offer other cardiology 
related services including cardiac rehabilitation, cardiac catheterization, a twelve-bed coronary care unit and an emergency 
room staffed and equipped for treatment of cardiac emergencies. Cardiac diagnostic and therapeutic services are also 
available. 

3. Wake Medical Center ("Wake") is a health service facility which operates an open heart surgery service 
in Raleigh, North Carolina. Wake's program operated at 55.8% of capacity in the fiscal year 1994. 

II. The State Medical Facilities Plan 

4. The General Assembly designated the Department of Human Resources as the State Health Planning and 
Development Agency and mandated this department to regulate the Certificate of Need law, to determine the need for health 
ser\ices in the State and to develop the State Medical Facilities Plan ("SMFP"). G.S. I31E-177. The SMFP is prepared 
by the Department of Human Resources and the North Carolina State Health Coordinating Council ("SHCC"), and approved 
by the Governor. G.S. I31E-176(25). 

5. The 1993 SMFP stated that the supply of open heart surgerj' programs in North Carolina was adequate 
primarily because utilization of these facilities was below capacity. 

6. The 1994 SMFP stated that the supply of providers and distribution of open heart surgery services and other 
cardiac services remained adequate and sufficient to meet the needs of North Carolina. Further, the SMFP stated: 

An Advisory Committee on Spiecialized Cardiac Services was appointed by the Chairman 
of the State Health Coordinating Council in December, 1992. This committee, comprised 
of cardiologists, cardiac surgeons, third-party payors, health economists, and health care 
administrators, met in February and March, 1993. After review and analysis of informa- 
tion contained in the Staff Analysis of Specialized Cardiac Services, comparative 
utilization data presented by third-party representatives and epidemiologists and received 
from a sampling of other states, the committee recommended to the SHCC that based on 
this information, and the methodologv' for projecting open heart surgical operating room 
need, no need for additional specialized cardiac services in 1994 was demonstrated. 
(Emphasis added). 



390 NORTH CAROLINA REGISTER June 14, 1996 11:6 



CONTESTED CASE DECISIONS 



The SMFP did conclude, however, that a person currently providing specialized cardiac services may be considered for 
additional capacity to meet specific needs if utilization of existing services and equipment exceeded 80%. 

7. The 1995 SMFP is applicable to Pitt's proposal and contains the language which is at issue in this contested 
case. The 1995 SMFP found the supply of open heart surgery services and other cardiac specialized services to be adequate. 
In 1993, the 51 operating rooms jn North Carolina were being utilized at an annual rate of 55% or 1 1,292 procedures; these 
51 rooms are capable of handling 20,400 procedures. However, open heart surgery procedures had increased at a rate of 
31.2% between 1989 and 1993. Applying this same rate of growth to the present number of operating rooms, the 1997 
utilization rate is projected to be 14,815 procedures. Therefore, even if the annual growth rate remains the same, there will 
be excess capacity of 5,585 procedures in 1997. At 80% of capacity, there would be excess capacity for 1,505 procedures. 
A graph in the SMFP shows an 18 year growth trend between 1981 and 1999 and demonstrates that the present open heart 
surgery services would reach 80% of capacity after the turn of the century. 

8. A map in the 1995 SMFP shows that open heart surgery services are currently available within 45 miles 
of over 90% of North Carolina residents. Further the SMFP emphasized that improved accessibility does not outweigh the 
adverse affects caused by duplication of existing services. "Increasing geographic access may create lower volumes in 
existing programs" which would reduce "quality and efficiency, exacerbate existing problems" regarding the availability of 
staff, "and not necessarily reduce waiting time . . . . " 

9. In conclusion, the 1995 SMFP states that there is no need for additional open heart surgery services or 
additional heart-lung bypass machines. One exception reads as follows: 

... except that a health service facility that currently provides these services may apply for a certificate of 
need to expand its existing services to meet specific needs if utilization of the health service facility's 
existing open heart surgery services exceeds 80% of capacity. 

10. The 1996 SMFP has not been adopted as a rule and is not legally applicable to this proceeding. 
Factually, however, it is relevant to note that the State Health Coordinating Council added the words "at its existing 
site or location" to the proposed 1996 SMFP provisions regarding expansions of existing open heart surgery 
programs operating at or above 80% capacity. This additional language was proposed after the SHCC and the 
Agency became aware that the Petitioners intended to interpret the present language to meet their plans to 
collaborate with Nash to provide open heart services. 

m. Nash and Pitt's proposed projects. 

11. Nash submitted an application to offer open heart surgery services at Nash in 1994. On June 30, 
1994, this application was denied by the Respondent. In the application, Nash proposed to affiliate with other 
providers including the academic medical center at Pitt and to utilize the research and teaching support at ECU. 
The program director and the open heart surgery team are basically the same as those proposed in Pitt's present 
application. Nash proposed an affiliation agreement between Pitt, ECU and Nash. 

12. Nash had proposed changes for the 1993, 1994 and 1995 SMFPs which would have allowed Nash's 
application to be reviewed on an HSA (health service area) level rather than statewide. 

13. On April 13, 1995, Pitt as lessee and Nash as lessor submitted an application to "expand" Pitt's 
existing open heart surgery services by leasing space from Nash in 1995. Prior to agency review of the application, 
the Department of Human Resources issued a press release and the Certificate of Need Section issued legal notices 
which refer to Pitt's proposal as an expansion. This language merely references the fact that Pitt has characterized 
its proposal to the Department as an expansion. 

14. Pitt proposed to provide the cardiac surgeon and perfusionist to perform open heart surgery 
services, to purchase the additional heart-lung bypass machines, to take rights as lessee to the physical space to be 
used for open heart surgery and to retain full supervision and control of the service provided at Nash. However, 
the surgeon and the perfusionist were actually to be provided by East Carolina School of Medicine ("ECU") through 
an agreement with Pitt. ECU would also provide continuing medical education and back-up consultative support. 
The surgeon and the perfusionist were to reside in Rocky Mount (Nash County). All other new personnel would 
be provided by Nash. For these reasons, it appears that Pitt is only a middle-man for what could actually be 



11:6 NORTH CAROLINA REGISTER June 14, 1996 391 



CONTESTED CASE DECISIONS 



accomplished directly between Nash and ECU. 

15. Pitt's proposal becomes one of form (expansion by lessor-lessee arrangement) over substance (new 
institutional health service at Nash). In fact. Petitioner's own memorandum of law at page 21 states: "The CON 
application made it clear to the Agency that the expanded open heart surgery service would be developed by ECU's 
Division of Cardiothoracic Surgery, through the auspices of Pitt." Pitt's application at page 30 states: "The PCMH 
satellite service will be developed and operated by ECU's Division of Cardiothoracic Surgery through PCMH" and 
further, "The PCMH satellite service will be staffed and managed on a day-to-day basis by NGH." On page 37 
of the application, Pitt states: "Nash will also use its hospital-wide quality assurance plan as a framework to carry 
out monitoring and evaluation of open heart surgery service activities. " Although Nash is the lessor and Pitt is the 
lessee, Nash will fund 92% ($2,048,672.00) of the total capital expenditure for the project and Pitt will fund only 
8% ($173,866.00). 

16. In the "Proposed Memorandum of Understanding" between ECU, Pitt and Nash, the collaborative 
effort by all three is clear. In fact, Nash agrees "to promote PCNfH's program as a cooperative effort" of Pitt, 
ECU and Nash. Nash agrees to provide facility/staff/ancillary services in exchange for a piercentage of the collected 
revenues. Nash also agrees to "provide day-to-day oversight of these services under direction of PCMH." 

17. As the CON project analyst so found in his review, Pitt and Nash are actually co-applicants. For 
that reason, he requested an additional certification page from Nash and it was submitted. 

OFFICIAL NOTICE 

Official notice is taken of the findings of fact made by the General Assembly when it enacted the Certificate 
of Need Law. Those findings which are set out in G.S. 131E-175 are incorporated by reference as if fully set out 
herein. 

Based upon the foregoing undisputed statement of facts, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of 
this contested case. G.S. 131E-188. 

2. There are no genuine issues of material fact and therefore, summary judgment is proper pursuant 
to G.S. lA-1, Rule 56 of the N.C. Rules of Civil Procedure and 26 NCAC 3.0101(1). 

3. As county hospitals, Pitt and Nash are subject to the Municipal Hospital Act which is codified in 
Part A of Article 2 of Chapter 13 IE of the General Statutes. A public hospital such as Pitt and Nash have the 
statutory authority to contract with or enter into any arrangement with any other public hospital for the provision 
of health care. G.S. 131E-7(l3). Any municipality owning or operating a hospital may "operate branches and 
related services within this Slate but outside the boundaries of the county . . . ." G.S. 131E-14. 1. No monies 
derived from taxes or municipal bonds or notes may be used for facilities located outside its boundaries. G.S. 
131E-14.1(1) & (2). 

4. Although county hospitals can have contractual arrangements with each other, G.S. 131E-178(a) 
requires that a health seA'ice facility obtain a certificate of need prior to offenng or developing a "new institutional 
health service." The term "new institutional health service" is defined to include the development or offering of 
open heart surgery services as well as the purchase of a heart-lung bypass machine. G.S. 131E-176(16)(f) & (fl). 
A hospital is included in the definition of "health service facility." G.S. 13 1E-I76(9b). 

5. The 1995 State Medical Facilities Plan was adopted as a rule and became effective on January 1, 
1995. 10 NCAC 3R .3030(8). It contains the following general rule: "It is determined that there is no need for 
additional open heart surgery services." Immediately following this general rule is one exception which states: 

except that a health service facility that currently provides these services may 
apply for a certificate of need to expand its existing services to meet specific 
needs if utilization of the health ser\'ice facility's existing open heart surgery 

392 NORTH CAROLINA REGISTER June 14, 1996 11:6 



CONTESTED CASE DECISIONS 



services exceeds 80% of capacity. 

6. G.S. 131E-183 provides than any proposed project must be consistent with the "need determina- 
tions in the State Medical FaciUties Plan, the need determinations of which constitute a determinative limitation on 
the provision of any health service ...." (emphasis added). 

7. To "develop" when used in connection with health services means taking on activities which will 
result in the offering of the health service or the incurring of a financial obligation in relation to the offering of such 
a service. G.S. 131E-176(7). To "offer" means that the hospital holds itself as capable of providing, or as having 
the means for the provision of, specified health services. G.S. 131E-176(18). For Nash, this proposal clearly 
represents the offering and development of a "new institutional health service" because it does not presently provide 
open heart surgery services and it will be holding itself out as capable of providing the service at Nash. For Pitt, 
this proposal also represents the offering and development of a new institutional health service for two reasons: 
1) because it has a financial obhgation in this venture and 2) because it will hold itself out as providing the services 
at Nash. 

8. Pitt's proposal is one of form (expansion by lessor-lessee arrangement) over substance (new 
institutional health service at Nash). Through Pitt's application, Nash is hoping to offer and develop its own open 
heart surgery facility. At the most, it is a joint venture between Nash, Pitt and ECU to provide open heart surgery 
services at Nash General Hospital. Thus, Respondent did not exceed its authority and jurisdiction, act erroneously, 
fail to use proper procedure, act arbitrarily and capriciously, or fail to act as required by rule or law when it found 
that Petitioner's project is not in actuality an expansion of Pitt's existing open heart surgery services. 

9. Even though Pitt is operating at or above 80% of capacity, Pitt does not meet the exception to the 
1995 SMFP general rule that there is no need for 0]3en heart surgery services primarily because Pitt has not shown 
that there are "specific needs" to be met that cannot be met by the existing open heart surgery service at Pitt or at 
other providers in North Carolina. The present services will be operating at excess capacity until after the year 
2000 and the residents which Pitt proposes to serve at Nash are within 45 minutes of existing programs. Pitt has 
three heart-lung bypass machines operating at 80% of capacity but it also has one for back-up and an additional one 
used for research at ECU. 

10. The 1995 SMFP exception to the general rule regarding need is clear and unambiguous. A rational 
reading of the rule in relation to the other provisions of Chapter 8 of the 1995 SMFP clearly shows that at the 
present time, there is no need for additional programs in North Carolina, however, if an existing facility is operating 
at 80% of capacity, it may apply for a certificate of need to expand that facility's service to meet the specific needs 
of the existing service. Webster's Dictionary defines "existing" to mean "to have being in a specific place." The 
CON project analyst referred to this definition. Pitt does not propose to expand where its existing service is located. 
Pitt and Nash are proposing a new institutional health service at Nash rather than an expansion of Pitt's present 
program. Using an allegorical example presented by Respondent-Intervenor's counsel at the hearing, a true 
expansion would be like one balloon being blown up larger than it is presently. But to do what Pitt is proposing 
requires blowing up a new balloon in another location. That is not an expansion of the first balloon. 

11. TTie 1996 addition of the words "at its existing site or location" is not presently a rule and not 
legally appHcable to this proceeding. Even if the 1996 proposed additional language could serve as a clarification 
tool for purposes of assisting the imdersigned Ln making this decision, this "does not mean that the original language 
was prohibitively unclear or the Agency's interpretation of it was unreasonable." Recommended Decision, 
Presbyterian Orthopaedic Hospital vs. N.C. Department of Human Resources. Division of Facility Services, 
Certificate of Need Section, Mercy Hospital, Inc., and Stanley Memorial Hospital, 93 DHR 0805 (March 1 1, 1994 
adopted in Final Agency Decision dated June 10, 1994). Changes in legislation and rules are proposed for 
numerous reasons. TTie addition, in this particular case, is neither an amendment nor a clarification. The proposed 
addition was merely a necessary step to address a clever attempt by Petitioners to interpret the 1995 exception to 
suit their needs. The Respondents needed to "head 'em off at the pass," so to speak, and perhaps, try to avoid 
unnecessary litigation. 



11:6 NORTH CAROLINA REGISTER June 14, 1996 393 



COSTESTED CASE DECISIONS 



Based upon the foregoing undisputed facts and conclusions of law, the undersigned makes the following: 

RECOMMENDED DECISION 

The Respondent's decision to deny the Petitioners' application should be AFFIRMED; therefore, the 
Petitioners' Motion for Partial Summar.' Judgment should be DENIED and the Respondent's and the Respondent- 
Intervenor's Motions for Summary' Judgment should be GRANTED. 

MEMORANDUM 

26 NCAC 3 .0126(c)(7) 

Respwndent-Intervenor's counsel used another example to illustrate why the language of the 1995 SMFP 
is clear and unambiguous except to those who need to read the rule another way to suit their needs. A mother tells 
her child to go and play in the backyard. When the mother finds the child in a neighbor's yard two houses away, 
the child sa\s, "But you didn't say whose backyard!" Everyone who knows better and is willing to live by the rules 
knows that the mother meant their own backyard. As Nash knew in August 1994, the SMFP policy permitted 
grouth "only in locations that have the service." 

Nash and Pitt/ECU have proposed a well thought out joint venture, one that will certainly add to Nash's 
other specialized cardiac services. However, the SHCC through its objective expertise has determined that at the 
present time, there is no need for additional open heart surgerv' services or heart-lung bypass machines in North 
Carolina nor does Pitt have any special needs in its existing program which can only be addressed by a new open 
heart surgery program at Nash. With patience and the passage of a few years, Nash will be well positioned to 
provide this service when the need arises. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, PO Drawer 27447, Raleigh. NC 27611-7447, in accordance with North Carolina General Statute 150B- 
36(b).'' 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity 
to file exceptions to this recorrmiended decision and to present written arguments to those in the agency who will 
make the final decision. G.S. 150B-36(a). 

TTie agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish 
a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

Tlie agency that will make the final decision in this contested case is the Division of Facility Services, 
Department of Human Resources. 

This the 23rd dav of Mav, 1996. 



Meg Scott Phipps 
Administrative Law Judge 



394 \ORTH CAROLINA REGISTER June 14, 1996 11:6 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF HALIFAX 



IN THE OFFICE OF 

ADMLNISTRATTVE HEARINGS 

95 OSP 0905 



CLAIRBEL THOMAS, 
Petitioner, 



HALIFAX COUNTY DEPARTMENT OF SOCIAL 
SERVICES AND DIRECTOR, HALIFAX COUNTY 
DEPARTMENT OF SOCIAL SERVICES 
Respondent. 



RECOMMENDED DECISION 



This contested case was heard on March 21, 1996 in Halifax, North Carolina, by Administrative Law Judge 
Thomas R. West. 

APPEARANCES 

Petitioner was represented by Lamont Wiggins of Rocky Mount, North Carolina. Mr. Wiggins made his 
appearance, for the first time, in the hearing. 

Respondent was represented by W. Lunsford Crew of Roanoke Rapids, North Carolina. 

MOTIONS 

At the beginning of the hearing, the Halifax County Board of Social Services made two potentially 
dispositive motions. 

1. The Board moved to dismiss the contested case arguing that Petitioner had failed to name the 

correct respondent. 

A review of the record shows that the dispute which gave rise to this contested case was first 
reviewed by the Director of the Halifax County Department of Social Services as the first step of the grievance 
process. The Director denied Petitioner's grievance by letter dated May 8, 1995. The letter informed Petitioner 
that a copy of the Halifax County DSS Appeals Policy was enclosed. TTie Appeals policy is attached to the 
Respondent's Prehearing Statement and is made a part of the record of this contested case. 

The Policy and Procedures governing the Apf)eals Process provides that Step 2 is an appeal to the 
Halifax County Social Services Board. The Policy provides that the Board will consider the grievance and then 
issue a recommendation to the Director. The Director is required to issue a final agency decision within ten days 
of receiving the Board's advisory opinion . 

On May 23, 1995, Petitioner requested, in writing, a review of her grievance by the Halifax 
County Social SeA'ices Board. The Board reviewed TTiomas' grievance on June 26, 1995. By letter dated July 6, 
1995, the Director of the Department of Social Services notified Petitioner that "... the Halifax County Board 
of Social Services advised me that they found no evidence of racial discrimination in the selection made. " The letter 
states that a copy of the Department of Social Services Appeals Process is enclosed. The Director did not adopt 
the advisory opinion of the Board or make a final decision denying Petitioner's grievance. 

On August 11, 1995, Petitioner filed a paper writing with the Office of Administrative Hearings. 
The paper writing states that Petitioner wants to appeal her case to the State Personnel Commission and that, "I did 
not agree with the decision of the Halifax County Social Services Board." From and after the filing of the paper 
writing, the Clerk of the Office of Administrative Hearings generated notices denominating the Halifax County 
Social Services Board as the Respondent. 



Jl:6 



NORTH CAROLINA REGISTER 



June 14, 1996 



395 



CONTESTED CASE DECISIONS 



The Director of the Halifax County Board of Social Services argues that she is the proper 
Respondent, not the Board, and that this case should be dismissed. 

The record is devoid of any evidence that Petitioner was given notice that the Director was the 
person against whom Petitioner should file a petition for a contested case. Instead, what is in the record is a letter 
from the Director dated July 6, 1995 in which the Director informs Petitioner that the Board had denied Petitioner's 
grievance at the second step. TTie Policy and Procedures attached to the letter does not state that the Director is 
the respondent in its description of "Step 3 - Appeal to the State Personnel Commission." 

The result is that Petitioner could reasonably conclude that her grievance should proceed as a 
contested case against the Board. Neither the Board nor the Director gave Petitioner the kind of notice required 
by G.S. 150B-23(f) that the contested case should proceed against the Director. 

TTie record shows that the Director of the Board was given notice of this contested case by the 
Clerk of the Office of Administrative Hearings on August 21. 1995 and that the Director has fully and vigorously 
defended this case. TTierefore, the undersigned concludes and ORDERS as follows: 

a. The proper respondent to this contested case is the Halifax County Department of Social 
Services and the Director of the Halifax County Department of Social Services, acting in her official capacity; 

b. TTie Director has had notice of the transactions and occurrences which Petitioner seeks 
to prove in support of her Petition since on or about August 21, 1995; 



Respondents; 



;. The Petition is hereby amended to show the Department and the Director as the 

d. The amendment shall relate back to the filing of the paper writing on August 1 1, 1995; 

e. The paper writing is sufficient to constitute a Petition commencing a Contested Case. 

2. Respondent moved to dismiss the case for Petitioner's failure to serve a certificate of ser\'ice 

showing service of the Petition. Following a discussion between counsel, the motion was withdrawn. 

OTHER PREHEARING MOTIONS 

1. Petitioner moved to compel certain discovery. The motion was DENIED for reasons stated on 
the record. 

2. Petitioner moved to sequester witnesses. The motion was GRANTED. 

ISSUE 

Did Respondent discriminate against Petitioner on the basis of her race (African-American) when it 
promoted a Caucasian co-worker to the position of Income Maintenance Caseworker III rather than Petitioner? 

BURDEN OF PROOF 

The burden is on Petitioner to prove by the greater weight of the evidence that Respondent discriminated 
asainst her on the basis of race. 



\VITNESSES 



For Petitioner: 



Clairbel Thomas - Petitioner: Income Maintenance Caseworker II - DSS 

Betty Hodge - Former DSS emplo\ee; applicant for position at issue 

Vivian Scott - Income Maintenance Caseworker II: applicant for position at issue 

Linda Brad} - Medicaid Caseworker II; applicant for position at issue 

396 AORTH CAROLINA REGISTER June 14, 1996 11:6 



CONTESTED CASE DECISIONS 



Clay T. Richardson - Income Maintenance Caseworker 11 - DSS; applicant for position at issue 

Martha Ray - Income Maintenance Caseworker 11 - DSS 

Rose Whitaker - Income Maintenance Caseworker 11 - DSS 

Dawn Carr (adverse witness) - Income Maintenance Division Chief 

By stipulation, the parties agreed on what three more witnesses would testify, if called. The stipulated testi- 
mony will be set forth below. The three witnesses were: 

Annie Smith - Caseworker El - DSS; applicant for position at issue 

Kimberly Curley - Caseworker II - DSS 

Carrie Doyle - Caseworker II - DSS 

For Respondent : 

Rose Scott - Personnel Officer - DSS 

Betty Daniel - AFDC Unit Supervisor 

EXHIBITS 

Pi - Petitioner's high school diploma 

P2 - Petitioner's Form DD214 (Certificate of Release or Discharge from 

Active Duty in the U.S. Army) 
P3 - Petitioner's Honorable Discharge from the U.S. Army 

P4 - Petitioner's Student Record from Halifax Community College 

P5 - Susan Moore's Application for Employment; structured interview 

questions and answers 
P6 - Clairbel Thomas' Application for Employment; structured interview 

questions and answers 

FINDINGS OF FACT 
I. 

1. Clairbel Thomas is employed at the Halifax County Department of Social Services (hereafter "DSS") as 
an Income Maintenance Case Worker 11. By the date of the hearing of this case, Thomas had been employed as 
a Caseworker with DSS for seven years. At the time of the personnel action at issue in this case, Thomas had been 
employed at DSS for six years. 

2. TTiomas is an African-American female. 

3. On March 13, 1995, Thomas applied for a promotion at DSS to the position of Income Maintenance Case 
Worker HI. Thomas was interviewed for the position, but on April 5, 1995, was informed by letter that she had 
not received the promotion. 

4. The position was filled by Susan Moore. Moore was also an Income Maintenance Caseworker II at DSS. 
At the time Moore applied for the position, she had been employed at DSS for five and a half years. 

5. Moore is a Caucasian female. 

6. Thomas filed a grievance alleging racial discrimination. The grievance moved through Step 1 and Step 2 
of the Policy and Procedures governing personnel action appeals at DSS. Thomas did not obtain the relief she was 
seeking, so she moved to Step 3 of the procedure by filing a Petition commencing a contested case. 

7. The petition is sufficient and was filed in a timely and proper fashion. 



11:6 NORTH CAROLINA REGISTER June 14, 1996 397 



CONTESTED CASE DECISIONS 



n. 

8. Betty H. Daniel and Dawn M. Carr interviewed the applicants for the Income Maintenance Caseworker 
in position. Daniel and Carr are Caucasian females. 

9. Daniel is the Supervisor of the AFDC Unit at DSS. Daniel has been employed at DSS for twenty-three 

years. 

10. Carr is the Chief of the Income Maintenance Division within the AFDC Unit at DSS. 

1 1 . Daniel supervises Carr. Carr supervises the Income Maintenance Caseworker HI position at issue. 

12. At the time of the interviews for the Caseworker III position, Moore was an Income Maintenance 
Caseworker 11 in the Income Maintenance Division and was supervised by Carr. Thomas, the Petitioner, was an 
Income Maintenance Caseworker 11 handling Medicaid claims and was not supervised by either Daniel or Carr. 

13. Sixteen people applied for the position. Seven of the applicants were DSS employees. All of the DSS 
employees were interviewed by Daniel and Carr. Four of the DSS applicants are African-American females; three 
are Caucasian females. 

m. 

14. DSS employs 166 people. 43% of the staff is African- American; 56% of the staff is Caucasian. 

15. At the time of the promotion at issue, the Director of DSS was Frances Butler. Butler is a Caucasian 
female. At the time of the hearing of this case, Butler had retired, and the Director of DSS was Evelyn Dawson. 
Dawson is an African-American female. 

16. The Board of Social Services for Halifax County has five members; three members are African-American, 
two members are Caucasian. 

17. DSS employs 53 workers that it classifies as "Para-Professional." This category includes Income 
Maintenance Caseworker Us and His. 40% of this category of workers is African- American; 60% is Caucasian. 

18. Between January 1, 1990 and August 31, 1995, DSS promoted 46 employees. 46% of the people promoted 
are African- American; 54% of the people promoted are Caucasian. 

19. The Income Maintenance Division within the AFDC Unit at DSS employs four staff members in Income 
Maintenance Caseworker III positions. None of the four people holding Caseworker III positions is African- 
American. 

20. DSS employs 23 workers that it classifies as "Supervisory Staff." 43% of the people in this category (10) 
are African-American; 57% of the people (13) are Caucasian. Six of the workers in the Income Maintenance 
Division are classified as supervisors. One of the supervisors is African- American. 

IV. 

21. Daniel and Carr conducted structured interviews of the applicants. Each applicant was asked the same 
questions and each applicant was evaluated using a numerical scale. 

22. Daniel and Carr evaluated the applicants on: 

a. TTie completeness of their application; 

b. General appearance; 

c. Whether they had the minimum educational requirements; 

d. Communication skill - how the applicants answered the questions asked by the interviewers; 

e. Work experience - with DSS and with the AFDC program; 

f. Experience in clinics operated by DSS. 



398 NORTH CAROLINA REGISTER June 14, 1996 



CONTESTED CASE DECISIONS 



23. Daniel and Carr did not evaluate the applicants who had worked at DSS on the basis of their general 
appearance on a day-to-day basis or their communication skills with people using the services of DSS. 

24. After the interviews had been completed, Daniel and Carr met to evaluate the applicants. The two filled 
out a form denominated an "Interview Guide" for each applicant. The form has a list of five qualifications with 
a rating from 5 to 1 . At the bottom of the chart, there is an overall summary and rating. 

25. Daniel and Carr assigned a "2" in the "Education" category of qualifications if an applicant had completed 
High School and a "3" if the applicant had a two year college degree. No other training was rated. No rating 
above a "2" was assigned for courses taken which would lead to a two year degree. 

26. Daniel and Carr determined the numerical ratings of the applicants in consultation with each other rather 
than individually. 

27. The Interview Guide lists six questions for the interviewers to ask themselves to evaluate the applicants' 
qualifications for the job and six questions for the interviewers to ask themselves to evaluate the applicants' 
unfavorable factors. 

28. The Interview Guide also provides a place for the interviewers to give an overall evaluation to the appli- 
cants, answer whether the applicant is adaptable and trainable and whether the applicant will contribute. 



29. Thomas' application and the forms used by Daniel and Carr during Thomas' interview were received into 
evidence as Exhibit P6. 

30. On Exhibit P6, Daniel and Carr found Thomas to possess all of the qualifications for the Income 
Maintenance Caseworker III position. 

31. Daniel and Carr found that Thomas did not have any of the unfavorable factors for the promotion. 

32. The interviewers rated Thomas as a "Good" applicant and wrote that Thomas was adaptable and trainable 
and would contribute. 

33. Daniel and Carr rated Thomas a "2" in Education because Thomas has graduated from high school. 
Thomas was certified as a Personnel Record Specialist in the U.S. Army and has 60 semester hours of course work 
at Halifax Community College, but none of this training resulted in a higher rating because the interviewers gave 
a higher rating than a "2" only if the applicants had a two year college degree or more. The interviewers used this 
rating criterion consistently with all of the applicants. 

34. The interviewers rated Thomas and all of the other DSS applicants a "3" on "Additional Skills Training" 
because all of them had been given training in the relevant job skills while employed at DSS. 

35. The interviewers rated Thomas a "3" on the Verbal Communication category based on how Thomas 
responded to questions during the interview. The interviewers used this rating criterion with all of the applicants. 

36. The interviewers rated Thomas a "3" on the "Written Communication" category based on a paragraph each 
applicant was asked to write about the strengths they would bring to the position. 

37. The interviewers rated Thomas overall as a "2.8" on a scale of 1 to 5. 

38. The interviewers did not recommend Thomas for employment. 

VI. 

39. Moore's application and the forms used by Daniel and Carr during Moore's interview were received into 
evidence as Exhibit P5. 



'11:6 NORTH CAROLINA REGISTER June 14, 1996 399 



CONTESTED CASE DECISIONS 



40. On Exhibit P5, Daniel and Carr found Moore to possess all of the qualifications for the Income 
Maintenance Case-worker III position. 

41. Daniel and Carr found that Moore did not have any of the unfavorable factors for the promotion. 

42. The interviewers rated Moore as a "Good" applicant and wrote that Moore was adaptable and trainable and 
would contribute. 

43. Daniel and Carr rated Moore a "2" in Education because Moore has graduated from high school. Moore 
has no formal education beyond high school. 

44. The interviewers rated Moore and all of the other DSS applicants a "3" on "Additional Skills Training" 
because all of them had been given training in the relevant job skills while employed at DSS. 

45. TTie interviewers rated Moore a "4" on the Verbal Communication category. 

46. The interviewers rated Moore a "4" on the "Written Communication" category based on a paragraph each 
applicant was asked to write about the strengths they would bring to the position. 

47. The interviewers rated Moore overall as a "3.2" on a scale from 1 to 5. 

48. The interviewers recommended Moore for promotion. 

VII. 

49. Betty Hodge was an Income Maintenance Caseworker II for four and a half years in the APDC Unit at 
DSS. Hodge is a Caucasian female. 

50. Hodge was an applicant for the promotion at issue. 

51. Hodge came to work for DSS on the same day Moore did. Hodge worked closely with Moore and, like 
Moore, was supervised by Daniel. 

52. Hodge believes Moore is a "preferred" employee who is given more latitude than other employees. Hodge 
believes Moore has a lighter workload and gets longer breaks than other employees. When Hodge was late for 
work, she was counseled; when Moore was late, she was not. 

53. Hodge believes that Moore was not the most knowledgeable caseworker in the AFDC Unit. 

54. Hodge no longer works at DSS, but manages a retail clothing store, D.A. Kelly's. When Hodge left DSS, 
she told Daniel she did not like the favoritism Daniel showed to some employees. 

vni. 

55. Vivian Scott has been an employee of DSS for seventeen years and an Income Maintenance Caseworker 
11 in the AFDC Unit for two to three years. Scott applied for the promotion at issue. Scott has a two year 
Associate of Arts degree. 

56. Scott is an African- American female. 

57. Scott has known both Thomas and Moore since they came to work at DSS. Scott does not believe Moore's 
work was any better than hers or anyone else's. 

58. Scott believes that the attitude of management in the AFDC Unit is that if you don't like something there, 
you can just leave. 



400 NORTH CAROLINA REGISTER June 14, 1996 11:6 



CONTESTED CASE DECISIONS 



DC. 

59. Linda Brady has been an employee of DSS for fifteen years, and a Caseworker EI in the Medicaid Unit 
since 1982. 

60. Brady knows both Moore and Thomas, having worked with both of them. Brady considers Thomas to be 
more qualified for the Caseworker HI position than Moore is because Thomas has worked in the Medicaid, AFDC 
and Nursing home Units within DSS, and Moore has only worked within the APDC Unit. 



6 1 . Thomas has a more varied exjjerience than Moore as a Caseworker, having worked taking applications for 
medicaid, AFDC, and nursing homes. 

XI. 

62. Clay T. Richardson has been an employee of DSS for five and a half years as of the date of this hearing. 
Richardson is employed as a Income Maintenance Caseworker II in the AFDC Unit. 

63. Richardson appUed for the promotion at issue in this case, but only because she did not think Moore had 
applied. Richardson has a two year Associate of Arts degree. 

64. Richardson believes there is discrimination in the agency because Moore and another Caseworker, Bridget 
Byron, are treated better than the other employees. An example of the better treatment is Daniel's assigning Moore 
and Byron to work at the satellite clinics operated by DSS. Experience in the clinics was necessary job experience 
to be eligible for the Caseworker HI promotion. Prior to Daniel's assigning just Moore and Byron to the clinics, 
the assignment rotated among all the Caseworker Els. Richardson believes Daniel assigned Moore and Byron in 
order to qualify Moore for the promotion at issue. 

65. It is not clear whether Richardson believes there is racial discrimination in the AFDC Unit, or that Moore 
is treated better than everyone else, and for that reason there is discrimination. Richardson did not testify there was 
racial discrimination. The Administrative E^w Judge can only speculate whether Richardson believes there is racial 
discrimination, but is afraid of retaliation, or whether Richardson believes the discrimination is motivated by 
Daniel's and Carr's friendship with Moore rather than by racial animus. 

xn. 

66. Martha Ray has been employed by DSS for seventeen years, and has worked as a Caseworker U for several 
years. Ray is a Caucasian female. 

67. Ray is familiar with Thomas and Moore as well as the Caseworker HI position. Ray believes Thomas is 
more qualified for the position than Moore. Ray does not believe Moore was the most qualified applicant for the 
position because Moore does not act like she cares about her clients and did not perform well as an Income 
Maintenance Caseworker IE. 

68. Ray did not apply for the promotion because she thought either Moore or Bridget Byron would get it and, 
since Byron did not apply, she knew Moore would get it. 

69. Ray beUeves there is discrimination in the AFDC Unit, but that it is based on friendship rather than racial 
animus. 

xni. 

70. Rose Whitaker has worked at DSS since October 1, 1989, and has worked as an Income Maintenance 
Caseworker II for five years as of the date of this hearing. Whitaker is an African-American female. 



/U:6 NORTH CAROLINA REGISTER June 14, 1996 401 



CONTESTED CASE DECISIONS 



71. Whitaker works in the AFDC Unit with Moore, but is also familiar with Thomas. Whitaker believes 
Thomas is more qualified than Moore for the Caseworker III position. 

72. Whitaker did not apply for the Caseworker lU position because she felt Moore and Bridget Byrum were 
prepped for the promotion because of their assignment to the Halifax Clinic operated by DSS. 

XIV. 

73. The parties stipulated in open hearing to the following: 

a. Annie Smith, Kimberly Curley and Carrie Doyle are employees of DSS; 

b. Smith is African-American, Curley is Caucasian and Doyle is African-American; 

c. All three employees are employed as Caseworker lis; 

d. All three employees know TTiomas and Moore; 

e. Smith applied for the Caseworker III promotion at issue, while Curley and Doyle did not; 

f. All three employees believe that Moore was not the most qualified applicant and that other 
applicants were more qualified; 

g. All three emplo} ees believe there is an atmosphere of disparate and discriminatory treatment at 
DSS. 

XV. 

74. In consultation with each other, Daniel and Carr rated TTiomas, and the three other African-American 
females who applied for the promotion, a "2.8" on the rating sheet used in the structured interview. Vivian Scott 
and Clay T. Richardson received the 2.8 rating, just like Thomas and the other African-American applicant, Annie 
Smith, despite the fact that Scott and Richardson have Associate of Arts degrees and would have rated higher on 
the "Education" category on the Interview Guide sheet than TTiomas and Smith as well as Moore. 

75. Vivian Scott had worked with DSS for over fifteen years at the time of the interviews for the promotion 
at issue. Despite having worked twice as long as Thomas and Moore, Scott was only rated a "4" on the Interview 
Guide as compared to the "3" for Thomas and Moore. 

76. Annie Smith's and Thomas' employment applications were more complete than Moore's application. 

77. Thomas did not answer a question on her employment application regarding whether she had ever been 
convicted of an offense against the law other than a minor traffic violation. At the time of her application, Thomas 
had been convicted of Driving While Impaired. Thomas testified during her case in chief that the management of 
DSS was aware of the conviction at the time she interviewed for the Caseworker m position. Neither the Personnel 
Officer, Daniel, nor Carr, all of whom testified after Thomas, rebutted Thomas' testimony. 

Based on the foregoing, the undersigned reaches the following: 

CONCLUSIONS OF LAW 

1. Thomas has established a prima facie case of racial discrimination: 

a. She is a member of a protected group; 

b. There has been an adverse action, i.e., Thomas applied for a promotion which she did not receive; 

c. Thomas is qualified for the Income Maintenance Caseworker III position; 

d. There is some other evidence of discrimination on the basis of race: 

i. All of the African-American applicants recei\ed the same numerical rating despite having 

varied educational qualifications and varied seniority with DSS; 
ii. Two of the African-American applicants received lower numerical ratings than Moore 

despite having better educations; 
iii. One of the African-American applicants also had significantly more seniority than Moore; 

iv. Daniel and Carr tallied the applicant's numerical scores in consultation, rather than 

separately as should be done in a structured interview; 

402 NORTH CAROLINA REGISTER June 14, 1996 11:6 



CONTESTED CASE DECISIONS 



V. Several employees of DSS believe Moore received preferential treatment; 

vi. Both of the interviewers were Caucasian. The successful applicant is Caucasian. 

2. DSS articulated a legitimate, non-discriminatory reason for selecting Moore for the promotion: 

a. Both Moore and Thomas were qualified; 

b. Both Moore and Thomas have similar educations and work experience; 

c. Moore communicates more effectively than Thomas both verbally and with written language. 

3. Moore is qualified for the position of Income Maintenance Caseworker HI. 

4. TTie brief essay attached to Moore's application is more complete and well written than the brief essay 
attached to Thomas' application. 

5. The structured interview process used by DSS was deficient: 

a. The interview team should contain more than two people; 

b. One of the interviewers should have been the Personnel Officer or someone else in management 
that could have brought an agency-wide perspective to the interview; 

c. The interview team should reflect the racial diversity of DSS; 

d. The process should not rely solely on how a person dresses for an interview or performs in an 
interview when internal applicants are the focus, but should rely more heavily on performance 
evaluations. 

6. The structured interview was most noticeably deficient in that the numerical ranking assigned to the 
applicants was not independently determined by each interviewer and then averaged, but was determined by the 
interviewers in consultation with each other. 

7. The numerical rankings assigned to the applicants are invalid. 

8. Thomas has shown, by the greater weight of the evidence, that the legitimate, non-discriminatory reason 
for selecting Moore over Thomas is false because the selection process was incapable of achieving a result that was 
legitimate. No applicant, other than Moore, received fair consideration. 

9. Moore received the promotion because of Daniel's and Carr's personal bias in her favor (cronyism). 

10. Thomas has not shown, by the greater weight of the evidence, that Respondent was motivated by racial 

animus in promoting Moore. 

RECOMMENDED DECISION 

The relief requested in the Petition should be DENIED. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, PO Drawer 27447, Raleigh, NC 27611-7447, in accordance with North Carolina General Statute 150B- 
36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity 
to file exceptions to this recommended decision and to present written arguments to those in the agency who will 
make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish 
a copy to the parties' attorney of record and to the Office of Administrative Hearings. 



11:6 NORTH CAROLINA REGISTER June 14, 1996 403 



CONTESTED CASE DECISIONS 



The agency that will make the final decision in this contested case is the State Personnel Commission. 
This the 29th day of May, 1996. 



Thomas R. West 
Administrative Law Judge 



404 NORTH CAROLINA REGISTER June 14, 1996 11:6 









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BARCLAYS OFFICIAL NORTH CAROLINA ADMINISTRATIVE CODE - 1995 






ONE-TIME 


ANNUAL 






PURCHASE 


SUBSCRIPTION 


DESCRIPTION 


CODE 


PRICE 


PRICE 


Tide 1 - Dept. of Administration - Full Title 


201 00 00 


$63.00 


$90.00 


Division of Purchase & Contract 


201 10 05 


$21.00 


$30.00 


Federal Block Grant Funds 


201 10 33 


$17.50 


$25.00 


Title 2 - Dept. of Agriculture - Full Title 


202 00 00 


$98.00 


$140.00 


Food & Drug Protection Division 


202 1 5 09 


$28.00 


$40.00 


Structural Pest Control Committee 


202 1 5 34 


$21.00 


$30,00 


Agricultural Markets 


202 1 5 43 


$21.00 


$30.00 


Plant Industry 


202 15 48 


S21.00 


$30.00 


Animal Industry 


202 15 52 


$21.00 


$30.00 


Title 3 - Dept. of State Auditor - Full Title 


203 00 00 


$7.00 


$10.00 


Title 4 - Dept. of Commerce - Full Title 


204 00 00 


$87.50 


$125.00 


Alcoholic Beverage Control Commission 


204 1 5 02 


$12.00 


$40.00 


Banking Commission 


204 15 03 


$24.50 


$35.00 


Credit Union Division 


204 1 5 06 


$14.00 


$20.00 


Savings & Lxian Division 


204 1 5 09 


$14.00 


$20.00 


Industrial Commission/Workers Compensation 


204 1 5 1 


$14.00 


$20.00 


Savings Institutions Division 


204 15 16 


$24.50 


$35.00 


Title 5 - Dept. of Corrections - Full Title 


206 00 00 


$56.00 


$80.00 


Division of Prisons 


205 1 5 02 


$24.50 


$35.00 


Title 6 - Council of State - Full Title 


206 00 00 


$21.00 


$30.00 


Title 7 ■ Dept. of Cultural Resources - Full Title 


207 00 00 


$21.00 


$30.00 


Title 8 - State Board of Elections - Full Title 


208 00 00 


$7.00 


$10.00 


Title 9 - Offices of the Governor & Lt. Governor - Full Title 


209 00 00 


$31.50 


$45.00 


Title 1 - Dept. of Human Resources - Full Title 


210 00 00 


$346.50 


$495.00 


Licensing of Health Facilities 


210 20 10 


$45.50 


$65.00 


Detention Facilities 


210 20 20 


$31.50 


$45.00 


Mental Health & Rehabilitation Services 


210 20 30 


$77.00 


$110.00 


Social Services 


210 20 40 


$119.00 


$170.00 


Children Services/Day Care 


210 20 41 


$31.50 


$45.00 


Services for the Aging 


210 20 42 


$31.50 


$45.00 


Services for the Blind 


210 20 43 


$28.00 


$40.00 


Services for the Deaf & Hard of Hearing 


210 20 44 


$17.50 


$25.00 


Employment Opportunities 


210 20 45 


$35.00 


$50.00 


Title 1 1 - Dept. of Insurance - Full Title 


211 00 00 


$63.00 


$90.00 


Insurance 


211 1001 


$56.00 


$80.00 


Consumer Services 


211 10 04 


$24.50 


$35.00 


Fire & Rescue Services 


211 1005 


$17.50 


$25.00 


Agent Services 


211 1006 


$28.00 


$40.00 


Engineering & Building Codes 


211 1008 


$21.00 


$30.00 


Title 12 - Dept. of Justice - Full Title 


212 00 00 


$63.00 


$90.00 


Private Protective Services 


212 1007 


$21.00 


$30.00 


Police & Sheriff's Education & Training Standards 


212 1009 


$31.50 


$45.00 


NC Alarm Systems Licensing Board 


212 10 11 


$17.50 


$25.00 


Title 1 3 - Dept. of Labor - Full Title 


213 00 00 


$77.00 


$110.00 


Mine & Quarry Safety 


213 15 06 


$14.00 


$20.00 


General Safety/OSHA 


213 20 00 


$31.50 


$45.00 


Wage & Hour Rules 


213 15 12 


$14.00 


$20.00 


Boiler & Pressure Vessel Safety 


213 15 13 


SI 4.00 


$20.00 


Apprenticeship & Training 


213 15 14 


$14.00 


$20.00 


Elevator & Amusement Device Safety 


213 15 15 


SI 4.00 


$20.00 


Title 14A - Dept. of Crime Control & Public Safety - Full Title 


214 00 00 


$31.50 


$45.00 


Alcohol Law Enforcement 


214 00 08 


$17.50 


$25.00 


Victims Compensation Fund 


214 00 11 


$14.00 


$20.00 


Title 15A - Dept. of Environ., Health, & Nat. Resources - Full Title 


215 00 00 


$276.50 


$395.00 


Environmental Management 


215 15 00 


$115.50 


$165.00 


Air Quality 


215 IB 10 


$49.00 


$70.00 


Water Quality 


215 15 20 


$49.00 


$70.00 


Land & Waste Management 


215 15 30 


$56.00 


$80.00 


Solid Waste Management 


215 15 31 


$35.00 


$50.00 


/Underground Storage Tanks 


215 15 32 


$17.50 


$25.00 



DESCRIPTION 





ONE-TIME 


ANNUAL 




PURCHASE 


SUBSCRIPTION 


CODE 


PRICE 


PRICE 


216 15 40 


$31.50 


$46.00 


215 25 00 


«105.00 


$150.00 


215 25 10 


$42.00 


$60.00 


215 25 20 


$35.00 


$50.00 


215 25 30 


$59.50 


$85.00 


215 25 31 


$17.50 


$25.00 


216 00 00 


$21.00 


$30.00 


216 1006 


$21.00 


$30.00 


217 00 00 


$91.00 


$130.00 


217 15 10 


$31.60 


$45.00 


217 15 20 


$56.00 


$80.00 


217 15 27 


$31.60 


$46.00 


217 15 29 


$21.00 


$30.00 


218 00 00 


$21.00 


$30.00 


218 10 06 


$21.00 


$30.00 


219 00 00 


$63.00 


$90.00 


219 1002 


$28.00 


$40.00 


219 10 03 


$36.00 


$60.00 


220 00 00 


$31.50 


$45.00 


221 00 00 


$143.50 


$206.00 


222 00 00 


$0.00 


$0.00 


223 00 00 


$7.00 


$10.00 


224 00 00 


$7.00 


$10.00 


225 00 00 


$42.00 


$60.00 


226 00 00 


$7.00 


$10.00 


227 00 00 


$42.00 


$60.00 


299 99 98 


$375.00 


$750.00 


266 00 00 




$750.00 


266 60 00 


-- 


$250.00 


288 50 00 


$295.00 


$475.00 


288 80 00 


$40.00 


$75.00 


299 90 00 


$16.00 





Coastal Management 

Environmental Health 

Radiation/Nuclear Waste 

Sanrtation 

Public Health 

Intoxilizer & Breathalyser 

Title 16 - Dept. of Public Instruction - Full Title 

Elementary & Secondary Education 

Title 17 - Dept. of Revenue - Ftil Trde 

Taxes on Individuals 
Taxes on Business 
Sales & Use Tax Division 
Motor Fuels Tax Division 

Title 1 8 - Secretary of State - Full Title 

Securrties Division 

Title 1 9A - Dept. of Transportation - Full Title 

Division of Highways 
Division of Motor Vehicles 

Title 20 - Dept. of tf>e State Treasurer - Full Trde 

Title 21 - Occupational Licensing Boards - Full Title 

Trde 22 - Administrative Procedures Act - Repealed 

Trde 23 - Dept. of Community Colleges - Full Tilie 

Tide 24 - Independent Agencies - Full Trde 

Trde 25 - Office of State Personnel - Full Tide 

Trde 26 - Office of Administrative Hearings - Full Trde 

Tide 27 - Nortfi Carolina State Bar - Fiil Trde 

Nortfi Carolina Administrative Code - Full Code 

(Add $86.00 Shipping and Handling) 

CD-ROM Nortfi Carolina Administrative Code 
CD-ROM Nortfi Carolina Administrative Code 

(When purchased with the Full Code In Print) 

Master Index 

Master Table of Contents 

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